Parker v. State, 2016–KA–01502–COA
| Decision Date | 03 April 2018 |
| Docket Number | NO. 2016–KA–01502–COA,2016–KA–01502–COA |
| Citation | 277 So.3d 1 |
| Parties | Shannon Craig PARKER a/k/a Shannon C. Parker a/k/a Shannon Parker, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS, ATTORNEY FOR APPELLANT.
OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE.
EN BANC.
WILSON, J., FOR THE COURT:
¶ 1. Following a jury trial, Shannon Craig Parker was convicted of aggravated assault. The circuit court sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) with an additional consecutive sentence of five years for using a firearm during the commission of the crime. On appeal, Parker argues that the trial judge erred by allowing an expert in firearms and toolmark identification to testify and by refusing to order a mental evaluation to address his sanity at the time of the offense. The former issue is procedurally barred because Parker did not object to the expert's testimony at trial, and the latter issue is without merit. Parker also argues that his additional five-year sentence for use of a firearm violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. However, prior decisions of our Supreme Court and this Court have rejected the same argument. Therefore, we affirm the conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶ 2. Around 7:40 p.m. on January 28, 2016, Eric and Edna Burkett were in front of their home in Hattiesburg, about to take their dog for a walk, when a white pickup truck stopped in the street in front of their home. The Burketts did not know the driver, a large white man wearing an orange shirt, and asked if they could help him. The driver got out of the truck, mumbled a few words, opened the truck's back door, took out a rifle, and shot Eric in the stomach. The man also shot at Edna, but he missed. The Burketts ran, and their neighbor called an ambulance and the police.
¶ 3. A few minutes later and less than half a mile from the Burketts' home, police found a white truck in a ditch with its tires spinning, as if the driver was attempting to drive out of the ditch. Parker, a large white man, was driving the truck, and he was wearing an orange shirt. After the police placed Parker under arrest, they found a rifle in the truck. The Burketts later identified Parker in photo lineups and at trial as the man who shot Eric. Police also recovered one shell casing in the street in front of the Burketts' home.
¶ 4. Parker was uncooperative and "appeared to be under the influence" when he was taken into custody, so the police did not attempt to interview him on the night of his arrest. The next day, Parker waived his Miranda rights and wrote and signed the following statement: Parker cried during his interview, and the officer who interviewed him recommended a mental evaluation. Parker saw a licensed professional counselor and reported that he was being treated for anxiety and depression. The counselor noted that Parker "was verbal and responsive" and that "[h]is thought processes were rational."
¶ 5. Parker was indicted on two counts of aggravated assault, Count I for shooting Eric and Count II for attempting to shoot Edna, with a five-year sentence enhancement for using a firearm during the commission of the crime. See Miss. Code Ann. § 97–37–37(1) (Rev. 2014). His case proceeded to a jury trial in circuit court on September 22–23, 2016. The State elected to proceed as to Count I only.
¶ 6. The shell casing found in front of the Burketts' home and the rifle found in Parker's truck were sent to the Mississippi Crime Laboratory for analysis. At trial, the State tendered Carl Fullilove as an expert in the field of firearms and toolmark identification, and Parker's attorney specifically stated that he had "[n]o objection" to Fullilove's testimony.
¶ 7. Fullilove testified that he has a master's degree in forensic sciences, has attended FBI courses in firearm identification techniques, and has twenty years of experience analyzing firearms and components, including ten years at the Mississippi Crime Lab. Fullilove testified that he test-fired the rifle found in Parker's truck in a laboratory and then used a microscope to examine the shell casing from the test-fire for "individual characteristics" that are unique to a specific firearm. He then compared the individual characteristics of the shell casing from the test-fire to those of the shell casing found in front of the Burketts' home. Fullilove testified that, in his expert opinion, the shell casing found in front of the Burketts' home was fired from the rifle found in Parker's truck. He also testified that an independent examiner (a "technical reviewer") at the Mississippi Crime Lab reviewed the same evidence and reached the same conclusion.
¶ 8. On cross-examination, Fullilove was asked about a 2008 National Academy of Sciences (NAS) report on firearm and toolmark identification and a subsequent response to the report issued by the Association of Firearm and Tool Mark Examiners (AFTE). Fullilove testified that AFTE, of which he is a member, had adopted a standard that an expert's testimony regarding a match should not be stated in "absolute" terms but rather should be stated in terms of "a reasonable degree of scientific certainty." Fullilove also conceded that AFTE had estimated that firearm and toolmark analysis could produce a "false positive rate" of approximately 1.3 percent.
¶ 9. Parker exercised his right not to testify at trial and did not call any witnesses in his defense, and the jury found him guilty of aggravated assault. The circuit court sentenced Parker to serve twenty years in MDOC custody with an additional consecutive sentence of five years for using a firearm during the commission of the crime. Parker subsequently filed a motion for a judgment notwithstanding the verdict or a new trial, which the circuit court denied, and a timely notice of appeal.
ANALYSIS
¶ 10. On appeal, Parker argues that the trial judge erred by allowing Fullilove to testify and by not ordering a mental evaluation to assess his mental status at the time of the offense. Parker also argues that the sentence enhancement for use of a firearm in the commission of the offense violates double jeopardy. We address these issues in turn, providing additional facts and procedural history as needed.
¶ 11. Parker first argues that the trial court erred in allowing Fullilove to testify because his testimony was "unreliable." However, Parker waived this issue because his trial counsel specifically stated that he had "[n]o objection" to Fullilove's testimony. Our Supreme Court recently addressed an essentially identical issue in Willie v. State , 204 So.3d 1268, 1272–75 (¶¶ 7–19) (Miss. 2016). We hold that Parker's claim is without merit given the Supreme Court's decision in Willie .
¶ 12. In Willie , an examiner from the Mississippi Crime Lab gave similar expert testimony that shell casings and bullets found at the crime scene were fired by a gun owned by the defendant (Willie). See id. at 1272–73 (¶¶ 7–8). Willie did not object to the examiner's testimony, and on cross-examination, counsel only asked whether there was "a margin of error for his results." Id. at 1273 (¶ 9). The expert responded that he was not aware of the "margin of error but admitted that he [was] not infallible." Id. On appeal, Willie argued that the "testimony matching the bullets and shell casings to the gun associated with Willie was unreliable because the science of forensic firearm and toolmark identification does not permit identifications to be made with absolute certainty." Id. at 1274 (¶ 13). However, the Supreme Court held that the issue was "procedurally barred" because Willie failed to object to the expert's testimony at trial. Id.1
¶ 13. In this case, Parker filed a pretrial motion to exclude Fullilove's testimony. The motion argued that Fullilove's testimony was unreliable and attached the 2008 NAS report that, as discussed above, was later a subject of cross-examination at trial. The State argued that the motion was untimely, but the trial judge stated that he would rule on the motion during trial after giving Parker an opportunity to voir dire Fullilove. During trial, Parker's attorney questioned Fullilove outside the presence of the jury; however, counsel then specifically stated that he had "[n]o objection" to Fullilove's testimony. Parker's attorney then utilized the NAS report on cross-examination, and Fullilove agreed that AFTE had responded with a statement that examiners should not testify in "absolute" terms but rather should testify to "a reasonable degree of scientific certainty." Fullilove also acknowledged that AFTE had stated that toolmark analysis could produce a 1.3 percent "false positive" rate, which defense counsel later emphasized in closing argument.
¶ 14. In this case, as in Willie , Parker's appellate counsel argues that Fullilove's testimony should have been excluded as unreliable and because "Fullilove failed to qualify his opinion as being to a reasonable degree of certainty." However, on cross-examination, Fullilove did concede that AFTE had issued a statement adopting a "reasonable degree of scientific certainty" as the appropriate standard for testimony. Fullilove also conceded that AFTE had acknowledged an error rate and the possibility of false positives. More important, just as in Willie , Parker failed to object to Fullilove's testimony at trial. Therefore, as in Willie , this issue is procedurally barred. Willie , 204 So.3d at 1274 (¶ 13).2
¶ 15. Parker also makes a cursory alternative argument that his trial counsel rendered ineffective assistance by failing to object to Fullilove's testimony. Again, however, Willie rejected an essentially identical argument....
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Willie v. State
...it fell "within the scope of trial strategy." Id. at 1275 (¶ 19). ¶ 11. In a recent case, Parker v. State , 2016-KA-1502-COA, 277 So.3d 1, 2018 WL 1602585 (Miss. Ct. App. April 3, 2018), reh 'g denied (Sept. 4, 2018), this Court considered Shannon Parker's claim that the trial court erred i......