V. NO KA COA STATE OF MISSISSIPPI MOTION FOR REHEARING STANDARD OF REVIEW ARGUMENT

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1 E-Filed Document Oct :20: KA COA Pages: 5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DILLARD HARVEY APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING COMES NOW the Appellant, Dillard Harvey, by and through counsel, pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, and moves this Court to grant rehearing of its decision handed down in this matter on October 13, In support of the motion, Harvey would show unto the Court the following: STANDARD OF REVIEW Rule 40 of the Mississippi Rules of Appellate Procedure provides that the motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain[.] M.R.A.P. 40. Rule 40 also provides that [t]he motion shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended.... Id. I. Testimony of Dr. Shaker ARGUMENT a. Harvey properly preserved the issue of the forensic pathologist s testimony for appellate review. In Issue II before this Court, Harvey contends that the trial court erred in allowing Dr. Adel Shaker to testify regarding the relative positions of Yates and Harvey, over an objection from Harvey s defense counsel. This Court found that the issue was procedurally barred because of a lack

2 of a proper objection from the defense. This Court stated in its opinion: First of all, we note that the objection at trial was to the question, while the objection on appeal is to the answer that was given, which went beyond the question to encompass not only the position of the victim s body, but its position relative to its surroundings and relative to the shooter. (Opinion 11). The record is clear, however, that trial counsel, Yemi Kings, objected at least three times to Dr. Shaker s testimony regarding the position of the victim. Initially, Kings objected to the testimony saying, If he s going to testify about how he thinks the victim was positioned when he was shot, that would be speculation, Your Honor. (Tr. 442). The trial court sustained the objection because the State had not yet laid a proper foundation for the testimony. Later, Kings objected again, stating, Your Honor, they re again trying to elicit this doctor has no knowledge of expert knowledge of this. This is all speculation. (Tr ). Finally, on redirect, the State asked the question again: Do you have any expert opinion as to the body position Mr. Yates was in when the bullet penetrated his body? This time, it was met with a simple, Objection, Your Honor, which was overruled. (Tr. 463). The answer to the question of how the victim s body was positioned when he was shot includes, based on the trajectory of the bullet, the position of the shooter in relation to that. Dr. Shaker s response was responsive to the State s question, and defense counsel s repeated objections to the questioning is sufficient to preserve it for appellate review. b. The opinion testimony offered by Dr. Shaker was outside his area of expertise and should have been excluded. In his initial brief before this Court, Harvey relied on Edmonds v. State, 955 So. 2d 787 (Miss. 2007) to support his argument that Dr. Shaker s testimony regarding the position of Yates and Harvey was outside the scope of his expertise and should have been excluded. Like in Edmonds, the pathologist in this case testified to something that had no basis in science and was speculation. See

3 id. at (citing Moss v. Batesville Casket Co., 935 So. 2d 393, 404 (Miss. 2006)). The supreme court found that Dr. Hayne should not have been allowed to testify that two people shot the gun that killed the victim in that case. Id. Harvey did not attempt in his brief before this Court to assert that a pathologist can never testify to the relative positions of the victim and shooter. (Opinion at 12). There may be cases where the pathologist has enough information to state, with scientific certainty, that two people were standing in various positions in relation to one another. However, in this case, there is no scientific basis for the pathologist to testify that the victim was ducking and kneeling down forward and that this is the only explanation... [t]here is no alternative explanation for the trajectory of the bullet through the victim s body. As in Edmonds, the record lacks a showing that the pathologist s opinion was based on science and not on speculation. See also Parvin v. State, 113 So.3d 1243 (Miss. 2013). Because of the great weight juries place on expert testimony, the trial court should have excluded testimony that was not based on scientific principles. II. The trial court erred in denying Harvey the opportunity to re-cross examine Dr. Shaker. In its analysis of the issue, this Court relies on Harvey s failure to object to the question regarding the positions of Yates and Harvey because he objected to the question on the (unspecified contemporaneously, though previously argued) grounds that its answer would be speculative... (Opinion 15). Harvey objected to the testimony repeatedly. The information Dr. Shaker gave was new information that came out on re-cross examination. Objecting to the answer given, after objecting to the question, would not have solved the problem of the jury hearing new evidence from an expert witness that was not based on scientific principles. The only way to remedy that evidence coming out a trial was to allow Harvey to re-cross examine Dr. Shaker. It was an abuse of discretion, irrespective of Harvey s failure to object on the additional

4 grounds that the question was beyond the scope of cross-examination, to refuse to allow Harvey to fully cross-examine the witness following new information on redirect. WHEREFORE, PREMISES CONSIDERED, Harvey respectfully requests this Court grant his Motion for Rehearing. Respectfully Submitted, Dillard Harvey, APPELLANT By: /s/ Mollie M. McMillin Mollie M. McMillin, Counsel for Appellant

5 CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Dillard Harvey, do hereby certify that I have this day electronically filed the foregoing MOTION FOR REHEARING with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable John R. Henry, Jr. Attorney General Office Post Office Box 220 Jackson, MS Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non-mec participant: This the 27th day of October Dillard C. Harvey, MDOC #23584 CMCF 720 C-2, C-Zone P. O. Box Pearl, MS Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: mmcmi@ospd.ms.gov /s/ Mollie M. McMillin Mollie M. McMillin, Counsel for Appellant