Opinion
No. 2007-KA-00666-SCT.
February 19, 2009.
TRIAL JUDGE: HON. MARGARET CAREY-MCCRAY, DATE OF JUDGMENT: 03/08/2007, COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
DISPOSITION: AFFIRMED
ATTORNEYS FOR APPELLANT: OFFICE OF INDIGENT APPEALS, BY: LESLIE S. LEE, JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY: JOYCE CHILES
EN BANC
¶ 1. On November 21, 2003, Richard Birkhead was indicted for capital murder, having being found guilty of murdering Walter Lanier while engaged in a robbery.
¶ 2. Birkhead filed a series of pre-trial motions, one of them for a mental evaluation at the Mississippi State Hospital at Whitfield. The trial judge granted this motion, among other reasons, to determine whether Birkhead had sufficient ability to consult with his attorney in the preparation of his defense as well as to ascertain his mental state at the time of the alleged offenses. A neuropsychologist in Tuscaloosa, Alabama, opined that Birkhead was mildly mentally retarded, assigning him an intelligence quotient of 72. However, the Mississippi State Hospital staff disagreed with that diagnosis and determined that Birkhead was not mentally retarded. After briefing and a hearing, the trial court issued an order and opinion, citing Atkins v. Virginia , and found that Birkhead had established by a preponderance of the evidence that:
Atkins v. Virginia , 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (concluding that the United States Constitution places a substantive restriction on a state's power to take the life of a mentally retarded offender).
(1) his full scale IQ is within the established range of an individual who is mentally retarded; (2) he suffers from adaptive deficits in both the functional academics and social/interpersonal skills areas that were manifested prior to the age of eighteen; and (3) he is not malingering.
The trial court granted Birkhead's motion to preclude the State from seeking the death penalty.
Neither Birkhead's mental state nor the trial court's order granting the motion to preclude the death penalty is at issue in this appeal.
¶ 3. A four-day jury trial took place in the Circuit Court of Washington County. After the State rested its case, Birkhead moved for directed verdict, which the trial court denied. Birkhead was found guilty of capital murder. After the verdict, Birkhead renewed his motion for directed verdict, or in the alternative, sought a new trial. The trial court denied this motion as well.
¶ 4. Birkhead was sentenced as a habitual offender and was ordered to serve life without parole in the Mississippi Department of Corrections. Birkhead appeals from this judgment.
¶ 5. Birkhead presents the following issues for appeal to this Court:
I. Whether the trial court erred when it determined the defense had not established a prima facie case of discrimination in the State's selection of jury members and use of peremptory strikes.
II. Whether Birkhead's constitutional right to confrontation was violated by the admission of the victim's death certificate into evidence.
III. Whether the trial court abused its discretion in allowing the death certificate into evidence when it showed the purported time of injury.
IV. Whether the trial court erred in not dismissing a sleeping juror.
V. Whether the trial court erred in not declaring a mistrial after a witness's comment regarding Birkhead's exercise of his right to remain silent.
VI. Whether the trial court erred in giving Jury Instruction CR-12 regarding attorney's notes.
VII. Whether there was a cumulative error which deprived Birkhead of his right to a fundamentally fair trial.
FACTS OF THE CASE
¶ 6. On June 12, 2003, eighty-two-year-old Walter Lanier left his home in Hamburg, Arkansas, to go to the Jubilee Casino in Greenville, Mississippi. Surveillance tape from the casino shows Lanier entering the casino at 9:00 p.m. and shows Lanier exiting the casino on June 13, 2003, at 2:17 a.m.
¶ 7. Officer Jeffery Parsons, who was a patrolman with the Washington County Sheriff's Office, testified he heard on his scanner that there was a disturbance when the nightclub was closing at the Jubilee. While Officer Parsons was driving through the parking lot of the casino, he noticed a Cadillac with one white male seated in the front seat and one African-American male seated in the back seat. He continued to drive through the parking lot until he was flagged down by an unknown female, who directed him back to the Cadillac.
¶ 8. According to testimony, when Officer Parsons returned to the Cadillac, he saw an African-American male exiting the rear passenger door and walking rapidly toward the casino. Officer Parsons radioed the Greenville Police Department and advised the man should be detained. He then exited his patrol car, while maintaining visual contact with the man. He further testified the lighting was good and that no other people were in the area.
¶ 9. Officer Parsons testified that he trailed the man until he saw Officer Rod Shannon detain him. About five to six steps from where the male was being detained, Officer Parsons found a knife. Officer Parsons did not touch the knife, but instead notified a supervising officer at the scene. When Officer Parsons approached the Cadillac, paramedics were trying to resuscitate the man in the car, who later was identified as Lanier.
¶ 10. When Officer Parsons approached the African-American man, he recognized him as the male who was in the Cadillac. The man identified himself as Richard Birkhead. The supervising officer collected Birkhead's shirt, along with the knife, and gave it to Investigator Misty Litton Watson as evidence. Officer Parsons placed Birkhead in the custody of the Greenville Police Department and left the scene. Officer Parsons did not recall the time he arrived at the scene, nor did his report reflect the time.
¶ 11. After Officer Parsons testified, seven other Greenville Police Department officers testified that when they had arrived on the scene, they had found Lanier slumped over in the Cadillac with fresh stab wounds to his chest. It was later determined Lanier's fatal wounds matched the knife found by Officer Parsons. Officer Brian Payne testified there were no signs of forced entry into the car.
¶ 12. Greenville Police warrant officer Jimmy Myrick testified he arrived at the scene at 3:38 am. Officer Myrick transported Birkhead to the Greenville police station. He said he observed no signs of scratches or bruises on Birkhead or signs that Birkhead had been involved in any physical altercation. On the way to the station, Officer Myrick received a call from another officer who was at the hospital with Lanier. The officer reported that Lanier had been pronounced dead. The hospital determined the time of death to be 4:01 a.m., although Officer Myrick stated "he could not advise as to whether it was possible that Lanier died before 4:01."
¶ 13. When they arrived at the Greenville police station for booking, Officer Myrick confiscated money from Birkhead and discovered the money had blood on it. Officer Myrick immediately called Investigator Watson and waited with the money on the counter until she came to retrieve it. Officer Russell Frazier additionally testified to the presence of blood on Birkhead's blue jeans, which were taken into evidence at booking.
¶ 14. Forensic DNA analyst Huma Nasir testified that the blood on the money found in Birkhead's pocket, on Birkhead's jeans, and on the knife belonged to Lanier. No fingerprints were obtained from the knife. Nasir testified that Birkhead's DNA was on a washcloth found in the car, and based on a partial DNA profile, Birkhead's DNA also was on a baseball cap found in the car. Ken Gill, a latent fingerprint examiner, testified that Birkhead's fingerprints were found on the car's rear passenger door as well as on the silver strip above the door handle.
¶ 15. Lanier's autopsy revealed a bruise on his forehead and a stab wound to his chest. The pathologist testified that while he could not determine Lanier's exact position at the time of the attack, the wound to the front of Lanier's body could have been made by a person seated in the back seat of a vehicle as Lanier sat in the front seat. The pathologist testified he did not determine a time of death, as "I was not asked to, and I did not do that, and would not have had the requisite information at that time to come to a conclusion."
¶ 16. The defense moved for directed verdict after the State rested. When the motion was denied, the defense offered no witnesses. The focus of Birkhead's defense was the lapse of time between when Lanier left the casino at 2:17 a.m. until the time he was found dead at 3:38 a.m. In his opening argument, Birkhead's attorney pointed out that Lanier was unaccounted for for one hour and twenty-one minutes. Birkhead claimed he was on his way to the casino when he saw Lanier slumped over in the car and believed Lanier was sleeping or intoxicated. Birkhead claimed he saw property on the back seat and took the opportunity to steal the property. Birkhead asserted Lanier was already dead when he entered the vehicle.
¶ 17. After deliberation, the jury found Birkhead guilty of capital murder. After denial of his motion for judgment notwithstanding the verdict ("JNOV"), or in the alternative, for a new trial, Birkhead appealed his conviction to this Court.
ANALYSIS
I. Whether the trial court erred when it determined the defense had not established a prima facie case of discrimination in the State's selection of jury members and use of peremptory strikes.
¶ 18. According to this Court:
[a] Batson challenge to a peremptory strike should proceed as follows. First, the defendant must establish a prima facie case of discrimination in the selection of jury members. Berry v. State , 703 So. 2d at 294 (citing Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)). The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State. Thorson v. State , 721 So. 2d 590, 593 (Miss. 1998).
Berry v. State , 802 So. 2d 1033, 1037 (Miss. 2001). Additionally, this Court has held that:
[o]n appellate review, a trial court's determinations under Batson are accorded great deference because they are largely based on credibility. McGilberry v. State , 741 So. 2d 894, 923 (Miss. 1999) (citing Coleman v. State , 697 So. 2d 777, 785 (Miss. 1997)). This Court will reverse only when such decisions are clearly erroneous. Woodward v. State , 726 So. 2d 524, 530 (Miss. 1998); Lockett v. State , 517 So. 2d 1346, 1349-50 (Miss. 1987).
Id.
¶ 19. This case was tried in Washington County in 2007. According to the 2005-2007 American Community Survey Three-Year Estimates, the estimated total population of Washington County was 56,605. The estimated population of Blacks or African-Americans in the county was of 37,553, 66.3 percent of the total population. U. S. Census Bureau — Washington County, Mississippi — Fact Sheet,http://factfinder.census.gov (last visited February 3, 2009).
Although the American Community Survey (ACS) produces population, demographic and housing-unit estimates, the Census Bureau's Population Estimates Program produces and disseminates the official estimates of the population for the nation, states, counties, cities and towns and estimates of housing units for states and counties.
¶ 20. During jury selection, both parties made Batson challenges. See Batson , 476 U.S. at 79. The State based its challenge on the defense's striking of all of the white jurors to arrive at a predominately African-American panel. The court found the reasons given by the defense to be race-neutral.
¶ 21. The defense then raised its Batson challenge, stating that all of the jurors struck (thus far) in the selection by the State were African-American. At that stage of the proceeding, the jury was composed of one African-American male, seven African-American females, one white female, and two jurors whose race and gender are not made known in the record. The race and gender of the two alternates also are not made known in the record. The racial makeup of the venire, of the jurors who ultimately were chosen, and of other potential jurors struck by the State likewise are not in the record. Therefore, the presumptive conclusion made by the dissent of a Batson violation and an error by the trial judge is unsupported by the record. We cannot override the trial court when this Court does not even know the racial makeup of the venire or the jury. The trial court is accorded great deference because it uniquely is in a position to observe what a blank record fails to reveal. See Berry , 802 So. 2d at 1037.
¶ 22. After the trial court questioned the racial makeup of the jury, the defense stated its belief that Batson was based on the potential jurors struck rather than the resultant panel composition. The trial court responded, "It's also based on the composition of the jury as well. You take all of that into consideration. And I'm not going to find that that's a prima facie case." Birkhead argues the trial court misinterpreted Batson. However, this Court, citing Batson , has held:
[i]n order to establish a prima facie case, [Defendant] must show that the facts and circumstances give rise to the inference that the prosecutor exercised the peremptory challenges with a discriminatory purpose. Strickland v. State , 980 So. 2d 908, 915 (Miss. 2008); Tanner v. State , 764 So. 2d 385, 393 (Miss. 2000) (citing Bush v. State , 585 So. 2d 1262, 1268 (Miss. 1991)); Randall v. State , 716 So. 2d 584, 587 (Miss. 1998) (citing Batson , 476 U.S. at 94). "In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances." Batson v. Kentucky , 476 U.S. at 96.
Chamberlin v. State , 989 So. 2d 320, 337 (Miss. 2008) (emphasis added).
¶ 23. Birkhead submits to this Court that the fact that the State had not exhausted its peremptory challenges or that it left African-Americans on the jury did not relieve the State from its Batson burden. Birkhead asserts that the State's use of its first five peremptory challenges against African-Americans merits an inference of discrimination.
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.
Batson , 476 U.S. at 96-97.
¶ 24. The record does not aid this Court in discerning a pattern. Additionally, all the cases relied upon by Birkhead in his brief state the racial makeup of the final jury or the race of the other potential jurors struck by the State. We are not provided with sufficient information in this case to overturn Judge Carey-McCray's trial decision. "The burden falls upon an appellant to ensure the record contains `sufficient evidence to support his assignments of error on appeal.'" Hansen v. State , 592 So. 2d 114, 127 (Miss. 1991) (citations omitted).
¶ 25. Furthermore, "[t]here is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error to this Court." Juarez v. State , 965 So. 2d 1061, 1065 (Miss. 2007) (citation omitted). The composition of the jury when the Batson challenge was made was predominantly African-American, and the record is devoid of information regarding the racial makeup of the venire, the final makeup of the jury, and the race of the additional jurors struck by the State. Accordingly, Birkhead has failed to establish a record of Batson violations and otherwise has failed to show reversible error by the trial court.
II. Whether Birkhead's constitutional right to confrontation was violated by the admission of the victim's death certificate into evidence.
¶ 26. The standard of review governing the admission or exclusion of evidence is abuse of discretion. Williams v. State , 991 So. 2d 593, 597 (Miss. 2008) (citations omitted). However, "[t]his Court reviews de novo a Confrontation Clause objection." Smith v. State , 986 So. 2d 290, 296 (Miss. 2008) (citations omitted). The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
¶ 27. At trial, the State moved to have a certified copy of Lanier's death certificate admitted into evidence. When the death certificate was offered, the following exchange took place:
Court: Is there any objection?
Defense Counsel: Your Honor, may we approach?
Court: Yes.
(Conference at the Bench, out of the hearing of the jury).
Defense Counsel: On the report they have the hour of injury as being 3:38 a.m. I don't know that they have established that. They have the hour of death as being 3:50 a.m. I don't think they have established that. We will object to it being introduced.
State Counsel: It's a state official record, Your honor, certified under the laws of the State of Mississippi.
Court: I will allow it.
Defense Counsel: I have a question. Is anybody coming to testify about that death certificate?
State Counsel: It's a certified copy. It's admissible under the rules.
Defense Counsel: Okay.
¶ 28. Birkhead submits, "[p]olice were well aware that they had a subject in custody at the time Mr. Lanier arrived at the hospital. Therefore, the statement regarding "time of injury" was made with an eye toward being used in a future criminal proceeding against Birkhead." Birkhead relies on the Supreme Court's holding in Crawford v. Washington , which held, "[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse. . . ." Crawford v. Washington , 541 U.S. 36, 56, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177, 196 (2004). Birkhead asserts the "time of injury" of 3:38 a.m. could only have been given to the doctor signing the death certificate by police officers. However, Officer Parsons testified he arrived on the scene at "two something," Officer Payne testified he "was not sure what time he came to the scene," and Officer Myrick testified he arrived at the scene at 3:38 a.m. and noticed Lanier was slumped over. Officer Myrick testified Officer Payne accompanied Lanier to the hospital. Additionally, Officer Payne testified "he had no evidence to suggest Walter Lanier was not already dead at the time Richard Birkhead got into his vehicle." The jury clearly was presented with ample evidence to refute Birkhead's contention that the "time of injury" on the death certificate was established with an eye towards prosecution.
¶ 29. Additionally, the State asserts that the death certificate is a public record which is not testimonial in nature and is therefore admissible. Mississippi Rule of Evidence 902(4) states:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification. . . .
¶ 30. We find that the State is correct in its assertion that the death certificate is admissible as a public record. "[B]ecause some hearsay is reliable and trustworthy, the rule against hearsay has exceptions." Burchfield v. State , 892 So. 2d 191, 198 (Miss. 2004). Burchfield further held, "[t]he Confrontation Clause of the United States Constitution permits hearsay evidence to be admitted against the defendant only where the evidence falls within a recognized hearsay exception or particularized guarantees of trustworthiness assure the reliability of the evidence. Id. at 200 (citing Ohio v. Roberts , 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597, 608 (1980)). The death certificate meets this standard, and therefore, this issue has no merit.
III. Whether the trial court abused its discretion in allowing the death certificate into evidence when it showed the purported time of injury.
¶ 31. "The standard of review governing the admissibility of evidence is whether the trial court abused its discretion." Harris v. State , 970 So. 2d 151, 154 (Miss. 2007) (citations omitted).
¶ 32. Birkhead submits that the death certificate was not admissible under Mississippi Rule of Evidence 803(8) and relies on the comment to the rule, which states, in pertinent part:
The experience in other jurisdictions which have adopted an identical rule has been that judges are exercising great caution in admitting these reports. Often they are being excluded if based on hearsay or the opinions of those not involved in the preparation of the report. The rule expressly gives judges the discretion to exclude such reports.
Miss. R. Evid. 803(8) cmt. Birkhead asserts that the time of injury could only have been provided by information from police officers, and that the public records hearsay exception excludes matters observed by law enforcement personnel.
¶ 33. Contrarily, the State submits that the death certificate was admissible under Mississippi Rule of Evidence 803(9), which allows a hearsay exception regarding records of vital statistics. In the alternative, the State agrees with Birkhead that this Court, in Flowers v. State , held that the introduction of a death certificate is permitted, but its use is limited to showing the physical cause of death. Flowers v. State , 243 So. 2d 564, 565 (Miss. 1971). The State then argues that Birkhead is excluded from making this argument, as after his objection on this ground was denied, Birkhead did not move to have the time-of-injury portion of the death certificate redacted, nor did he ask the judge to give a limiting instruction regarding the time-of-injury portion of the death certificate.
¶ 34. Based on this Court's holding in Jones v. State , the trial judge erred in admitting the death certificate, which showed the time of injury.
Recognizing that the focus of Jones's attention in getting a redacted copy of the coroner's report before the jury was the statement regarding time of death and references to the state of rigor mortis, this report unquestionably lacked trustworthiness. Based on the facts of this case, the unfortunate demise of Tunica County Coroner Bart Cowart eliminated any hope for Jones in having this coroner's report admitted into evidence. Likewise, we are not prepared to say today that this evidence would have been admissible even if Cowart had been available as a witness at the time of trial. However, we can safely say that the coroner's report, in part or in toto, lacked trustworthiness. We know not as to how Cowart arrived at Stewart's time of death. Again, for all we know, Jones told him 9:30 p.m., or at the very least, Cowart had to rely on hearsay information to aid him in determining the time of death.
Jones v. State , 918 So. 2d 1220, 1233 (Miss. 2005).
¶ 35. It is clear that the doctor filling out the death certificate had to rely on information from someone who was not present when the injury took place, therefore the time of injury lacked trustworthiness.
¶ 36. While we hold that the trial judge erred, this error was harmless, as witnesses testified that they could not be positive of the time of injury or the time of death. Furthermore, Birkhead was allowed to put forth his defense that Lanier was unaccounted for for one hour and twenty-one minutes and that Lanier was dead when Birkhead came upon him. This Court, citing Yates v. Evatt , has held, "the inquiry is not whether the jury considered the improper evidence or law at all, but rather, whether that error was `unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" Thomas v. State , 711 So. 2d 867, 873 (Miss. 1998) (citing Yates v. Evatt , 500 U.S. 391, 392, 114 L. Ed. 2d 432, 111 S. Ct. 1884 (1991)).
IV. Whether the trial court erred in not dismissing a sleeping juror.
¶ 37. During the testimony of Investigator Watson, counsel for the State noticed a juror sleeping. Counsel approached the bench and made the judge, as well as defense counsel, aware of the sleeping juror. While this exchange was taking place, the juror awoke. Judge Carey-McCray stated she would have the bailiff get the juror a glass of water and "she would watch him closely." It is not clear whether defense counsel was present during the conference at the bench, as he made no remark or objection.
¶ 38. While a sleeping juror is a cause for concern, Birkhead goes too far in arguing his case is analogous to Church v. Massey , where a juror slept through "most of the proceedings." Church v. Massey , 697 So. 2d 407, 413 (Miss. 1997). The record in this case indicates no further problems with this juror, or any other.
¶ 39. Furthermore, as the State pointed out, Birkhead failed to raise the issue of the sleeping juror at trial, nor did he raise it in his motion for new trial. "Failure to raise an issue at trial bars consideration on an appellate level." Walker v. State , 913 So. 2d 198, 217 (Miss. 2005) (citations omitted).
V. Whether the trial court erred in not declaring a mistrial after a witness's comment regarding Birkhead's exercise of his right to remain silent.
¶ 40. "The standard of review for denial of a motion for mistrial is abuse of discretion." Dora v. State , 986 So. 2d 917, 921 (Miss. 2008) (citations omitted).
¶ 41. On direct examination, Investigator Watson testified she took Birkhead to the investigation area. The following exchange took place in court:
State's Counsel: For what purpose?
Investigator Watson: He was advised of his Miranda rights, and he refused to give a statement or say anything. . . .
Defense Counsel: Your Honor, may we approach?
Court: Yes.
(Conference at the Bench, out of the hearing of the jury)
Defense Counsel: The witness has just testified, I mean in direct violation of this Defendant's constitutional right to remain silent.
Court: I don't know why it was necessary to elicit that testimony. . . .Well, I don't think it would require a mistrial, but I don't understand why you would elicit that testimony.
State's counsel: I wasn't eliciting it, I was actually asking as far as the — I thought he was there when they took the pictures. There's pictures of him that's in the investigation division where they took a picture of his pants and they saw the blood on his pants. That's why I was actually looking for the picture so I can take her where I'm trying to go. . . .
Court: I don't remember the question, but I don't think the question lead [sic] there.
Defense Counsel: Your Honor, just for the record, we object to the witness making that statement and we ask for a mistrial.
Court: I'm not going to grant a mistrial, but I'm going to give an instruction right now reminding them that there is a constitutional right to remain silent and that that applies at any kind of criminal proceeding and that is not to be used against the defendant or considered against the defendant in any way.
Defense Counsel: Okay.
¶ 42. The trial judge then gave the following instruction:
This witness has just testified about the defendant's exercise of his constitutional right to remain silent. It's a right that all of us would have if we were criminal defendants in a case, and that is not to be considered against the defendant in any way. It's a right that he has that he can exercise. So I want you to disregard that statement entirely and certainly not give it any consideration or weight in this case.
¶ 43. Birkhead asserts to this Court that his constitutional right to self-incrimination was violated by the investigator's comment on his choice to remain silent. "In all criminal prosecutions the accused shall . . . not be compelled to give evidence against himself; . . ." Miss. Const. art. 3, § 25. See also U.S. Const. amend. V. (No person . . . shall be compelled in any criminal case to be a witness against himself. . . ."). Birkhead further asserts the jury instruction given by the trial court only emphasized the comment by the investigator.
¶ 44. "On issues of comments concerning a defendant's failure to testify, each case shall be considered on an individual basis." Weeks v. State , 804 So. 2d 980, 993 (Miss. 2001) (citing Logan v. State , 773 So. 2d 338, 348 (Miss. 2000) (citing Conway v. State , 397 So. 2d 1095, 1099 (Miss. 1980))). This Court recognizes the need to protect the constitutional rights of every citizen, and this Court accepts its charge to preserve these rights. Regarding comments on the failure of a defendant to testify or to remain silent, this Court has stated its position when an instruction is given by the trial court to cure this defect. In Blue v. State , this Court held that the effect of a comment by the prosecutor on the failure of the defendant to testify "was corrected by the jury instructions." Blue v. State , 674 So. 2d 1184, 1215 (Miss. 1996). In Strahan v. State , this Court ruled the error of the prosecutor's comment on the defendant's right to remain silent was not reversible, as an instruction was given to the jury to ignore the comment. "This is a very close issue, which involves a fundamental right. . . . However, given the context of the comment and the content of the written instructions, there is no reversible error." Strahan v. State , 729 So. 2d 800, 807 (Miss. 1998). Blue additionally stated, "Instruction CR-1A clearly prohibits the jury from considering comments made by counsel as evidence. It is generally presumed that jurors will obey and apply the instructions of the court." Blue , 674 So. 2d at 1215 (Miss. 1996) (citations omitted).
¶ 45. Based on the precedent of this Court, the trial court's instruction, to which the defense did not object, cured the error of the testimony of Investigator Watson. Therefore, the comment by Investigator Watson on Birkhead's exercise of his right to remain silent does not constitute abuse of discretion by the trial court, nor reversible error.
VI. Whether the trial court erred in giving Jury Instruction CR-12 regarding attorney's notes.
¶ 46. "When we review a claim of trial court error in granting or denying jury instructions, we are required to read and consider all of the jury instructions together as a whole." Richardson v. Norfolk S. Ry. Co. , 923 So. 2d 1002, 1010 (Miss. 2006) (citing Burr v. Miss. Baptist Med. Ctr. , 909 So. 2d 721, 726 (Miss. 2005)). "No instruction should be taken out of context or read alone in isolation." Pierce v. Cook , 2008 Miss. LEXIS 398, *29 (Miss. Aug. 14, 2008) (citing Richardson v. Norfolk S. Ry. Co. , 923 So. 2d 1002, 1010).
¶ 47. Based on the transcript, during the course of trial, counsel for Birkhead made notes on witnesses' testimony and displayed these notes on an easel before the jury. The State objected to defense counsel displaying the notes, because the State felt defense counsel was not writing down testimony verbatim, but was only "highlighting" specific portions of testimony. The trial court stated it found the issue troubling, as the court already had given an instruction to jurors not to look at each other's notes. The court took the matter under advisement for further review, and the State again reiterated its objection.
¶ 48. The next morning, counsel for both parties met in chambers with the trial judge regarding this issue. The trial judge stated:
This issue of counsel making notes during the testimony, the court believes that, at a minimum, it needs to give an instruction to the jury concerning it. Because it really is fraught with the same types of dangers that the court warned them about in looking at each other's notes, or sharing each other's notes, except that this is more powerful because it's done right there while the testimony is coming out and could be mistaken as evidence. . . .
¶ 49. After further extensive discourse, Judge Carey-McCray stated she would give the limiting instruction when she gave the other instructions, "because I don't want it to seem like I'm admonishing attorneys on either side."
¶ 50. The trial court then instructed the jury as to the following:
Instruction CR-12: Notes of an attorney are not evidence. An attorney's notes cannot be used to substitute for your independent recollection or judgement [sic] of the evidence.
When you consider the weight, importance or believability of any part of a witnesses' [sic] testimony, you must not be influenced by the notes taken and displayed to the jury by an attorney during that witness's testimony. An attorney's notes taken and displayed to you during a witness's testimony are not a verbatim record of the full testimony and may exclude evidence you give little importance to or find unbelievable and may exclude information that you give greater weight and find to be credible.
Thus, do not assume simply because something was written in an attorney's notes that it necessarily took place in court; nor that something did not occur or was not said simply because an attorney did not write in his or her notes.
¶ 51. On appeal, Birkhead objects to this instruction as giving improper prominence to particular portions of evidence. See Sanders v. State , 586 So. 2d 792 (Miss. 1992). Birkhead takes issue with the portion, "you may exclude information that you give greater weight and find to be credible," and states the trial court should have stated "some of the things defense counsel had written down could be credible."
¶ 52. However, during the instruction conference, the following exchange took place:
Defense Counsel: And we didn't have any objections to your other instructions.
Trial Court: No objections to the notes or anything, the instructions on the notes?
Defense Counsel: No, your honor.
¶ 53. The first time Birkhead raised an objection to this instruction was on appeal. "With few exceptions, this Court has enforced the rule that provides, where no objection is made at trial to an asserted error, a party is procedurally barred from asserting the error on appeal." Brown v. State , 965 So. 2d 1023, 1029 (Miss. 2007) (citing Fleming v. State , 604 So. 2d 280, 294 (Miss. 1992)). Additionally, "[i]t is incumbent on the party asserting error to make a contemporaneous objection and obtain a ruling in order to preserve the objection. Id. (citation omitted). Thus, Birkhead is now procedurally barred from raising this issue.
VII. Whether there was cumulative error which deprived Birkhead of his right to a fundamentally fair trial.
¶ 54. According to this Court:
[t]he cumulative error doctrine stems from the doctrine of harmless error, codified under Mississippi Rule of Civil Procedure 61. It holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.
Ross v. State , 954 So. 2d 968, 1018 (Miss. 2007) (citing Byrom v. State , 863 So. 2d 836, 847 (Miss. 2003)).
¶ 55. The only error committed was in allowing the full death certificate into evidence. However, this error has been shown to be harmless and does not constitute a basis for reversal.
[U]pon appellate review of cases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we shall have the discretion to determine, on a case-by-case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.
Bennett v. State , 2008 Miss. LEXIS 417, *13 (Miss. Aug. 28, 2008) (citing Byrom v. State , 863 So. 2d at 846-47)). As we find but one harmless error, the issue of the cumulative effect on the fairness of Birkhead's trial is without merit.
CONCLUSION
¶ 56. This Court has held that:
[w]e must view the evidence and all reasonable inferences which may be drawn therefrom in the light most consistent with the verdict. We have no authority to disturb the verdict short of a conclusion on our part that upon the evidence, taken in the light most favorable to the verdict, no rational trier of fact could have found the fact at issue beyond a reasonable doubt.
White v. State , 532 So. 2d 1207, 1220 (Miss. 1988) (citations omitted). Based on a review of the record, the evidence presented would allow a rational trier of fact to convict Birkhead of capital murder. Accordingly, the conviction of Birkhead should be affirmed.
¶ 57. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. WALLER, C.J., CARLSON, P.J., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., DICKINSON, J., JOINS IN PART.
¶ 58. My disagreement with Justice Kitchens's analysis of the Batson issue prevents me from fully joining his dissent. To establish a pattern and prima facie showing of discrimination, it seems to me, requires some context. The fact that a party strikes several venire members of a particular gender or race means nothing unless it is demonstrated that the party making the strikes had a choice. In the case sub judice, the defendant complains that the prosecutor struck several African-Americans in a row. For all we know from the record, however, the prosecutor may have had no choice, that is, the venire may have included only African-Americans. Under such circumstances, I cannot agree that the objecting party has established a pattern and prima facie case of discrimination.
¶ 59. As to the issues of the death certificate and the remark concerning the defendant exercising his constitutional right to remain silent, I agree with Justice Kitchens. By providing the following remarks, I do not intend to imply that Justice Kitchens's excellent analysis needs my help. I write separately only to provide emphasis to this important subject matter.
¶ 60. The statement "Hour of Injury . . . 3:38 a.m." was pure, rank, unadulterated hearsay provided by a police officer who was neither identified nor produced for cross-examination. Furthermore, it emasculated Birkhead's theory of the case.
¶ 61. The casino security cameras clearly established that the victim exited the casino at 2:17 a.m. Birkhead was not discovered in the victim's car until more than an hour later. This begs the question of why the victim didn't drive away during that hour. Birkhead claims the victim couldn't drive away because someone else had stabbed him close to 2:17 a.m. However, since the death certificate establishes the time of injury at 3:38 a.m. (close to the time Birkhead was discovered in the victim's car), the jury had no need to wonder about what happened from 2:17 a.m. until 3:38 a.m., and the State had no need to explain it.
¶ 62. In my view, an unidentified police officer was allowed to testify through the death certificate that the injury occurred at 3:38 a.m. This unchallenged, uncross-examined hearsay rendered Birkhead's theory invalid. Justice Kitchens is correct that the trial judge should have sustained the defendant's objection to the admission of this hearsay, and that failure to do so is reversible error.
¶ 63. I also agree that the trial judge should have declared a mistrial when the investigator improperly informed the jury that Birkhead had exercised his constitutional right to remain silent and had refused to give a statement. So long as Courts overlook such blatant violations of constitutional rights, prosecutors and investigators will have little incentive to refrain from committing those violations. Many argue that we should show more concern for the rights of the victim. I agree. But we do not show concern for victims by refusing to enforce the constitutional rights and protections required by the constitution. Instead, we increase the danger that the real perpetrator of a crime will walk free because some innocent person is wrongly convicted. Under such circumstances when the law is not judiciously followed, the victim's right to justice is certainly not perfectly protected, and society's demand for justice is just as certainly not met.
¶ 64. For the reasons provided herein, and except for the Batson issue, those stated by Justice Kitchens, I would reverse this case and remand for a new trial.
KITCHENS, J., JOINS THIS OPINION.
¶ 65. The judgment of the trial court should be reversed for three distinct errors: the trial judge's failure to recognize that defense counsel established a prima facie Batson challenge during voir dire; the trial judge's failure to declare a mistrial after a prosecution witness commented on Birkhead's constitutionally protected silence; and the trial judge's erroneous admission of the victim's death certificate. Because the majority holds otherwise, I dissent.
I.
¶ 66. Birkhead's appeal does not present the ultimate question of whether the trial court violated his constitutional rights under Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Rather, we meet only the preliminary question of whether "all of the circumstances that bear upon the issue of racial animosity," Snyder v. Louisiana , 128 S.Ct. 1203, 1208, ___ U.S. ___, 170 L. Ed. 2d 175 (2008), constituted "a prima facie showing that a peremptory challenge has been exercised on the basis of race. . . ." Id. at 1207 (quoting Miller-El v. Dretke , 545 U.S. 231, 277, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (Thomas, J., dissenting)). Such determinations are necessarily case-specific and will not be overturned on appellate review absent clear error. Woodward v. State , 726 So. 2d 524, 530 (Miss. 1998).
¶ 67. But the facts of this case clearly eclipse that high hurdle. When Birkhead lodged his Batson challenge, the prosecution had exercised five of its peremptory strikes, and all five had been used against African Americans. If this does not demonstrate the sort of "`pattern' of strikes against black jurors included in the particular venire [that] might give rise to an inference of discrimination," Batson , 476 U.S. at 96, then one has a hard time imagining a set of facts that would. See Flowers v. State , 947 So. 2d 910 (Miss. 2007) (reversing on Batson grounds where prosecutors used 100 percent of the peremptory strikes against African Americans).
The majority incorrectly contends that this conclusion cannot be drawn without more information about the makeup of the venire. This argument fundamentally misunderstands the Batson process. All that need initially be submitted to the trial court is "a prima facie showing that a peremptory challenge has been exercised on the basis of race. . . ." Miller-El v. Dretke , 545 U.S. 231, 277, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (Thomas, J., dissenting). If a chance exists that, as the majority implies, the racial makeup of the venire indicates racially neutral reasons for the challenged strikes, then that is a fact to be submitted to the court by the non-challenging party in the second stage of a Batson inquiry. Today's case does not ask us to reach this second prong.
¶ 68. In this case, the prosecutor may very well have been able to articulate reasonable, race-neutral reasons for his peremptory strikes in accordance with the second prong of the Batson process, and in light of those explanations, the trial judge could have been within his discretion to deny Birkhead's challenges. However, that is not the question before us. The question is whether Birkhead presented a prima facie showing of racially motivated peremptory strikes. I would find that the State's uses of each of its first five peremptory challenges against African Americans demonstrated such a showing.
II.
¶ 69. Both the Fifth Amendment to the U.S. Constitution and Article 3, Section 26 of the Mississippi Constitution clearly forbid self-compulsion, a prohibition that "has been construed by this Court to have been violated, not only when a direct statement is made by the prosecution as to the defendant's not testifying, but also by a comment which could reasonably be construed by a jury as a comment on the defendant's failure to testify." Griffin v. State , 557 So. 2d 542, 552 (Miss. 1990) (citations omitted). "Simply put, the government cannot use an accused's exercise of a Constitutional right as a weapon to convict him." Emery v. State , 869 So. 2d 405, 409 (Miss. 2004) (quoting Puckett v. State , 737 So. 2d 322 (Miss. 1999)). In the case at bar, the witness's reference to Birkhead's post-Mirandized silence clearly commented on that silence in violation of Birkhead's right to silence under the U.S. and Mississippi constitutions.
¶ 70. Some constitutional errors, in some circumstances, may be deemed harmless. See Fahy v. Connecticut , 375 U.S. 85, 86-87, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). But if a reviewing court discovers a constitutional error coupled with a reasonable possibility that the error could have contributed to the conviction, then the error is not harmless. Chapman v. California , 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Phrased another way, in order to identify harmless error, an appellate court must determine "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Delashmit v. State , 991 So. 2d 1215, 1223 (Miss. 2008). Such a determination necessarily requires case-by-case review. Riddley v. State , 777 So. 2d 31, 35 (Miss. 2000). In the case at bar, the trial record simply does not reveal the "overwhelming evidence" that sustains a conviction in the face of a constitutional error. See Williams v. State , 991 So. 2d 593, 606 (Miss. 2008).
¶ 71. Furthermore, this case is easily distinguished from Strahan v. State , 729 So. 2d 800 (Miss. 1998), upon which the majority relies. Maj. Op. at _44. In that case, the "very close issue, which involves a fundamental right," was not whether the State's reference to a defendant's silence was cured by a limiting instruction, but rather whether the prosecutor's statement actually was an allegation that the defendant had not presented jurors with a viable case. Strahan , 729 So. 2d at 807. In the case at bar, no such confusion exists. The record leaves no room for doubt that the defendant's constitutionally protected silence was addressed, a clear violation of our rule that "a direct reference to the defendant's failure to testify is strictly prohibited. . . ." Id.
III.
¶ 72. My deepest misgiving in this case, though, stems from the trial court's admission of the victim's death certificate.
The majority opinion devotes two sections of its discussion to the death certificate, but because they are so closely related, I combine these arguments into this one section.
¶ 73. Undoubtedly, as the majority rightly asserts, the death certificate is a self-authenticating document under Mississippi Rule of Evidence 902(4). See Maj. Op. at _29. But this rule establishes only that the death certificate is precisely that: a death certificate. Authenticity is not the prime concern here. Admissibility is. Rule 902 does not exempt a self-authenticating document from hearsay concerns. Rather, because the death certificate clearly was offered "to prove the truth of the matter asserted," Miss. R. Evid. 801(c) — namely, the time of the victim's injury — it clearly is hearsay, and as such "is not admissible except as provided by law." Miss. R. Evid. 802.
¶ 74. Rule 803(8) creates a hearsay exception for public records and provides the only potential foundation for the admission of the death certificate. However, Rule 803(8)(B) specifically excludes from its exemptive scope "in criminal cases matters observed by police officers and other law enforcement personnel. . . ." To the majority, "[i]t is clear that the doctor filling out the death certificate had to rely on the information from someone who was not present when the injury took place. . . ." Maj. Op. at _35. This is clear to me as well, and a review of the record shows that the only possible source of that information was a police officer. Rule 803(8), therefore, does not apply to this death certificate, and because no applicable hearsay exception exists, the death certificate is inadmissible hearsay and violated Birkhead's right to confront his accusers. See Burchfield v. State , 892 So. 2d 191, 200 (Miss. 2004). See also U.S. Const. amend. VI; Miss. Const. art. 3, — 26. The trial court abused its discretion in holding otherwise.
¶ 75. I further dissent from the majority's conclusion that whatever error occurred in the death certificate's admission was harmless error. This document was the State's only evidentiary basis for establishing the time of the victim's injury, this case's centrally contested fact. The admission of the death certificate did not amount to the sort of cumulative evidence that gives rise to a harmless-error label. It is impossible for us to say that this official document, which purported to establish the time of the victim's death, was not an important, perhaps critical, factor in the jury's decision.
CONCLUSION
¶ 76. The trial court committed clear error when it found that Birkhead had not made a prima facie Batson showing. The trial court abused its discretion in failing to declare a mistrial after a witness for the State blurted out, in the jury's presence, that the accused had exercised his constitutional right to remain silent. It further abused its discretion by admitting unexcepted hearsay evidence on a vital issue. For each of these reasons, I would reverse the judgment of the trial court and remand the case for a new trial. Because the majority does not, I respectfully dissent.