IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Apr :37: KA COA Pages: 21 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI HENRY J. PARKER, JR. APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT THE TRIAL JUDGE DID NOT ABUSE HIS JUDICIAL DISCRETION IN ADMITTING THE EXPERT OPINION TESTIMONY OF ANALYST TIMOTHY GROSS WHO HAD INTIMATE KNOWLEDGE OF THE RESULTS AND WAS ACTIVELY INVOLVED IN THE PRODUCTION OF THOSE RESULTS CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES STATE CASES Corbin v. State, 74 So.3d 333 (Miss. 2001) Galloway v. State, 122 So.3d 614 (Miss. 2013) , 14 Grim v. State, 102 So.3d 1073 (Miss. Oct. 18, 2012) , 12 Jenkins v State, 102 So.3d 273 (Ct. App. Miss. 2011) Jenkins v. State, 102 So.3d 1063 (Miss. Oct. 4, 2012) , 11, 12, 13, 16 McGilberry v. State, 741 So.2d 894 (Miss. 1999) McGowen, 859 So.2d at ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI HENRY J. PARKER, JR. APPELLANT VERSUS NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE In this appeal from his conviction of possession with intent of over two-hundred (200) pounds of marijuana valued between $150,000 and $200,000, the State proved the identity of the contraband via the testimony of the tester s supervisor and technical reviewer and not the testimony of the tester/trainee herself. There was no contemporaneous objection to this state of affairs, and save for Parker s motion for a directed verdict (R. 193) the matter was never raised or mentioned during trial. Ground 6 in Parker s motion for new trial, however, did assert as grounds therefor that the expert witness testimony of Timothy Gross who only supervised the testing should not have been admitted because the actual analyst did not testify. (C.P. at 88-89) On appeal, Parker argues belatedly his Sixth Amendment right to confront the witnesses against him was violated... when the trial court allowed a drug analyst other than the one who performed testing in [Parker s] case to testify about the results of the tests and his own conclusion that the substance was marijuana. (Brief of the Appellant at 4) Citing Corbin v. State, 74 So.3d 333, 337 (Miss. 2001), Parker claims... allegations of Confrontation Clause violations are subject to plain error review. (Brief of the Appellant at 5) 1

5 For reasons more fully developed in the rhetoric to follow, there was no constitutional violation of the confrontation clause and no error, plain or otherwise, taking place. HENRY J. PARKER, a seventy-two (72) year old testifying, self-confessed pastor at St. Mark United Church and an optical specialist from Houston, Texas, (R. 207) with a prior felony conviction (R. 284, ), prosecutes a criminal appeal from the Circuit Court of Harrison County, Lawrence P. Bourgeois, Jr., Circuit Judge, presiding. Parker seeks reversal and discharge. (Brief of the Appellant at 4) Following a trial by jury conducted on February 11, 2014, Parker, a testifying defendant, was convicted of possession of over 200 pounds of marijuana with the intent to distribute or transfer that substance to others. The contraband was contained in nine (9) large cattle feed bags found inside the trunk of a rented automobile being driven by Parker from Houston, Texas, to Moss Point, Mississippi. Law enforcement authorities stopped Parker s automobile [n]ear Highway 49 on I-10" after Parker was observed driving carelessly. (R ) Parker was thereafter sentenced to serve twenty (20) years in the custody of the MDOC with ten (10) years suspended followed by three (3) years of PRS. (R. 285; C.P. at 82) follows: Parker s indictment was returned on April 26, 2011, and, omitting its formal parts, reads as "That: HENRY JACKSON PARKER, JR.... on or about September 18, 2010[,] did knowingly, wilfully, unlawfully and feloniously possess more than one kilogram of MARIJUANA, a SCHEDULE I Controlled Substance, with the intent to transfer or distribute the said controlled substance, contrary to the form of the statute in such cases made and provided,... (C.P. at 8) After receiving jury instructions dealing with constructive possession and intent to transfer and distribute a controlled substance (C.P. at 70-72), the jury returned a verdict of We the jury, find 2

6 the Defendant, Henry Jackson Parker, Jr. guilty of possession of controlled substance with intent. (R. 279; C.P. at 81) One issue is raised on appeal to this Court, viz., [t]he trial court erred in allowing the State to present evidence from the Mississippi Crime Lab that the substance found in Parker s rental car was marijuana when the witness did not perform the actual testing on the substance. (Brief of the Appellant at 1, 4) STATEMENT OF FACTS Counsel opposite has done a commendable job of setting out the salient facts involved in this case, and we respectfully decline to plow that ground again in great detail here. (Brief of the Appellant at 2-3) It is enough to say that the night of September 18, 2010, Pablo dela Cruz, a canine patrol officer for the Harrison County Sheriff s Department, conducted a traffic stop of an eastbound silver color Grand Marquis automobile with a Texas license plate near Highway 49 on Interstate 10. The nervous driver identified himself as Henry Parker and was evasive when questioned. (R. 112) After Parker signed a consent to search form (R. 116), dela Cruz opened the trunk of the rented automobile and observed nine (9) feed bags which appeared to Cruz to be full of marijuana, a substance with a pungent and identifiable odor. (R , 121, 177) Timothy Gross, a forensic scientist and Associate Director serving as the regional lab manager of the Gulf Coast Regional Crime Laboratory, testified he had worked at the crime lab for thirty-two (32) years. Gross, whose duties at the time were largely supervisory and administrative, was accepted without objection as an expert in the field of forensic drug identification. (R ) Relevant portions of his testimony are quoted as follows: Q. [BY PROSECUTOR MS BAKER:] And can you tell me 3

7 the significance of your initials? Where are they on this box we re looking at right now? A. My initials are across the seal where I sealed the evidence after it was sampled and also on the inner packaging where the inner packages, these inner packages, were sealed after I removed a sample. Q. And for the record, it looks like we re actually looking at the bags that are clear; is that correct? A. Yes. Q. And it has your signature and the date as well? A. My initials and the date. Q. What is this marking here this - - A. These are the initials of the - - at the time this case was entered into the lab, I was in the process of training a new laboratory scientist, which is one of my duties as the manager, and she assisted with this case. And in order to document the fact that she assisted with this case and assisted with the work in this case, her initials are also on the evidence. Q. Okay. All right. So that squiggle mark would be your assistant. And what was her name? A. Tasha Carnes. Q. And then wherever we see, it looks like a TPG - - A. TPG is my initials. (R ) * * * * * * Q. Did you and your staff do an analysis of what s contained in these boxes? A. Yes. Yes, we did. Q. And what kind of analysis did you do? Can you explain that for the jury? A. The first part of the examination involves a visual inspection of the evidence as a whole. And then we remove 4

8 representative samples in order to be tested. That testing involves a microscopic examination where we look for the presence or absence of certain microscopic characteristics, and also a gas chromatography mass spectroscopy examination where chemical components of the substance are specifically identified. Q. And is that the standard testing you would do when given a piece of evidence such as this? A. Yes. Q. And tell me, what was the result of your testing of this exhibit? A. This submission was found to contain - - or these submissions were found to contain marijuana. Q. And were you able to do any type of confirmation testing to confirm those results. A. Well, the gas chromatography mass spectroscopy confirms specifically the presence of marijuana. Q. Now, Mr. Gross, can you tell me, based on your education, your experience, training, do you have an expert opinion as to exactly what s contained within those boxes? A. These submissions contain marijuana. (R ) * * * * * * Q. Can you tell me, what is the total weight of these four boxes? A. The total weight, including the inner packaging, was 91.7 kilograms. (R ) * * * * * * Q. [CROSS EXAMINATION BY MS ELLIS:] Mr. Gross, did you personally conduct the analysis on this marijuana? A. I was involved in the analysis. I didn t personally collect all of the data. Much of that work was done by Tasha Carnes. 5

9 Q. Okay. So you did personally or you did not personally do the analysis? A. I did not personally collect all the data. I supervised the analysis, and I made all of the decisions based on the data that was collected, and I made the identification. (R. 142) * * * * * * Q. [REDIRECT EXAMINATION BY MS BAKER:] Mr. Gross, in talking about your specific roles at the crime lab, you testified that you test substances to determine if they are controlled, correct? A. Yes. Q. Do you test for fingerprints? A. No. Q. And can you tell me, Mr. Gross, you said that you were overseeing the work and supervising it. Did you yourself sign off on the ultimate report, the final report? A. Yes, I did. And all of the data and all of the work that was done I personally supervised. Q. And was that important to you to do in this case? A. Excuse me? Q. Was that important for you to do in this case? A. Yes. Q. Was that standard procedure for you to do? A. Yes, that is standard procedure. As a laboratory trainee reaches a certain point in their development, they need to actually examine samples, and it s my job to supervise those persons as they examine samples. Q. And you said that you made the ultimate identification? A. Yes, I did. 6

10 Q. And again, your expert opinion what s contained in these boxes based on your identification? A. Yes. Q. What substance is it? A. Marijuana. (R ) Defense counsel was invited to voir dire Gross with respect to his qualifications as an expert in the field of forensic science but declined to do so. (R. 136) Brian Sullivan, an eight (8) year veteran agent with the Mississippi Bureau of Narcotics, testified the quantity of marijuana involved here... is not typical of a user for personal use. (R. 151) And with the fact that that quantity is coming from Texas, then it s for - - we believe for it to be for distribution purposes. (R. 152) Ryan Hearn, a narcotics investigator for the Harrison County Sheriff s Department, was accepted as an expert in the field of narcotics investigation. (R. 170) Hearn testified that while taking photographs of the interior of the defendant s automobile he could smell raw marijuana. (R. 177) Nothing else smells like it. (R. 177) After receiving his Miranda rights, Parker gave Hearn a statement. Q. Can you tell me, in speaking with him, what did the defendant tell you? A. He related to me and Agent Sullivan that a Jason Deville approached him in Houston, Texas, who he had went to church with, and Jason had asked him to drive this vehicle to Moss Point. And there, he related that he drives to a restaurant in Moss Point, parks the vehicle, goes inside, leaves the keys in the car, then they come pick the car up, leave with it, and then bring the car back within about an hour, then he leaves. That was all. 7

11 He related he d been compensated for this, he s done it numerous times, but he didn t relate what the compensation was. He never would tell me what he was paid by or how he was paid or anything in reference to it. Q. So the word compensated, is that one that he used? A. That was the word he used. Q. And would he articulate a specific number of times to you or did he just say several? A. He just said several times. He related that he didn t know about the marijuana in the vehicle, that he wasn t aware of that. (R ) At the close of the State's case-in-chief, the defendant moved for a directed verdict on the ground, inter alia, that... there s some question as to whether or not the lab tech who testified was the actual person who performed the test. In the event that he was not, then the evidence that it is in fact marijuana would be inadmissible. He said he supervised. I didn t seem to get a straight answer as to whether he conducted the test, but he said he supervised. (R. 193) Following argument from both litigants, including the State s observation the evidence had already been admitted without objection, Judge Bourgeois, citing the correct legal standard, overruled the motion with specific findings of credible facts which made out a case sufficient to go to the jury. (R ) After being advised of his right to testify or not to testify, the defendant elected to testify in his own behalf. (R ) Parker admitted being stopped on Interstate 10 by de la Cruz while in a rented automobile but denied he was aware of the character and presence of the 200 pounds of bagged marijuana that was found inside the trunk. 8

12 There were no rebuttal witnesses presented by the State. (R. 260) At the close of all the evidence, the jury retired to deliberate at 4:00 p.m. (R. 278) An hour and fifteen minutes later, at 5:15 a.m., it returned a verdict of [w]e the jury, find the defendant, Henry Jackson Parker, Jr., guilty of possession of controlled substance with intent. (R. 279; C.P. at 81) A poll of the jury, individually by name and number, indicated the guilty verdict was unanimous. (R ) The trial judge, after considering facts in extenuation and mitigation of sentence, imposed a sentence of twenty (20) years with ten (10) years suspended and ten (10) to serve followed by three (3) years of PRS. (R. 285; C.P. at 82-83) On February 26, 2014, pastor Parker filed a motion for a new trial/judgment notwithstanding the verdict alleging, inter alia, (C.P. at 101)... the expert witness for the State, Timothy Gross, testified that he supervised the testing on the alleged controlled substance at the Mississippi Crime Lab, but that actual testing was performed by Forensic Scientist Tashai Karnes. Tashai Karnes did not testify. In light of this testimony, any evidence that the substance tested was actually marijuana is inadmissible. (C.P. at 89) Obviously, this objection came much too late. Parker also claimed the verdict of the jury was strongly against the weight of the evidence. On August 4, 2014, a formal hearing was conducted for the purpose of adjudicating the merits of Parker s motion for a new trial/jnov and seeking sentence modification. (R ) Both the motion for judgment notwithstanding the verdict and for a new trial were subsequently denied as well as Parker s request for sentence modification. 9

13 Judge Bourgeois observed: I m well aware of what he has done in the past. I m also well aware that sometimes good people do bad things. (R. 299) SUMMARY OF THE ARGUMENT A supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was actively involved in the production of the report and had intimate knowledge of analyses even though [he or] she did not perform the tests first hand. Grim v. State, 102 So.3d 1073, 1081 ( 22) (Miss. Oct. 18, 2012), as modified on denial of reh Dec. 20, 2012). See also Jenkins v. State, 102 So.3d 1063, 1069 ( 20) (Miss. Oct. 4, 2012), as modified on denial of reh Dec.20, 2012); Galloway v. State, 122 So.3d 614, ( 40-49) (Miss. 2013); Jenkins v State, 102 So.3d 273, ( 20-30) (Ct. App. Miss. 2011), reh denied. Timothy Gross, is a forensic scientist and associate director of the Gulf coast regional laboratory. Gross, although involved in the analysis in a supervisory capacity, did not actually perform the analysis. Rather, Tasha Carnes, a trainee supervised by Gross, personally collected all the data while Gross... made all of the decisions based on the data that was collected and [he] made the identification. (R. 142) By analogy, Carnes took the patient s temperature while Gross analyzed the result and made a determination the patient was either febrile or afebrile. Gross, who had intimate knowledge of the final report and was actively involved in the production of the report, was available for cross-examination which consisted in this case of only three questions. (R. 142) Parker s right to confrontation was not violated. Jenkins v. State, supra, 102 So.3d 1063, 1069 ( 20) (Miss. Oct. 4, 2012), as modified on denial of reh Dec. 20, 2012) Moreover, there was no motion in limine or contemporaneous objection to the admissibility of the test results on confrontation grounds or any other ground. In this posture, any argument has 10

14 not been preserved; rather, it has been waived and is procedurally barred. The plain error rule is not applicable here because there is no error, plain or otherwise, involving confrontation rights. In the end, the trial judge did not abuse his judicial discretion in allowing the testimony of Timothy Gross that the substance in question was marijuana. Jenkins v. State, supra, 102 So.3d 1063, 1069 ( 20) (Miss. Oct. 4, 2012), as modified on denial of reh Dec. 20, ARGUMENT THE TRIAL JUDGE DID NOT ABUSE HIS JUDICIAL DISCRETION IN ADMITTING THE EXPERT OPINION TESTIMONY OF ANALYST TIMOTHY GROSS WHO HAD INTIMATE KNOWLEDGE OF THE RESULTS AND WAS ACTIVELY INVOLVED IN THE PRODUCTION OF THOSE RESULTS. Timothy Gross, a forensic scientist and associate director of the Gulf coast regional laboratory, testified the substance in question contained marijuana. (R ) This is the same Timothy Gross who, as laboratory manager and technical reviewer at the Gulf Coast Regional Laboratory, testified for the State in Jenkins v. State, supra, 102 So.3d 1063, 1069 ( 20) (Miss. Oct. 4, 2012), as modified on denial of reh Dec. 20, 2012), that the substance tested by his non-testifying analyst was cocaine. Jenkins s conviction was affirmed, and Parker s conviction is entitled to the same result. In the case at bar, Gross, although involved in the analysis in a supervisory capacity, did not actually perform the microscopic analysis or the gas chromatography mass spectroscopy examination. Rather, Tasha Carnes, a trainee supervised by Gross, personally collected all the data while Gross... made all of the decisions based on the data that was collected, and [he] made the identification. (R. 142) 11

15 Parker claims this was not enough to circumvent or by-pass the confrontation clause and excuse the testimony of Tasha Carnes. Specifically, Parker says [a]llowing Gross to testify regarding decisions based on data gathered by another scientist presupposes that the scientist in training was reliable and honest in her data gathering, and that she has the necessary education and training to even perform the testing. (Brief of the Appellant at 9) This issue is controlled by the state of the law as found in Jenkins v. State, supra, 102 So.3d 1063, 1069 ( 20) (Miss. Oct. 4, 2012), as modified on denial of reh Dec. 20, 2012), and Grim v. State, supra, 102 So.3d 1073, 1081 ( 22) (Miss. Oct. 18, 2012), as modified on denial of reh Dec. 20, 2012). The Jenkins case involved virtually the same factual scenario as the facts found here save for the fact cocaine was the contraband and not cannabis. The State called Timothy Gross, the same analyst and supervisor who testified in the case at bar. Jenkins objected because Gross did not conduct the actual examination. The trial judge found... that Gross s participation as the technical reviewer was sufficient to satisfy the Sixth Amendment right to confrontation. See Jenkins v. State, supra,102 So.3d 1063, 1065 ( 5). This Court stated the following: We agree with the Court of Appeals that the circuit court did not abuse its discretion by allowing Gross to testify regarding the laboratory report and his conclusion that the substance seized from Jenkins was cocaine. Jenkins s constitutional right to confrontation was not violated. The judgments of the Court of Appeals and the Circuit Court for the Second Judicial District of Harrison County are affirmed. In Grim v. State, supra, 103 So.3d 1073, 1081 ( 22), this Court stated: We hold that a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was actively involved in the production of the report and had intimate knowledge of analyses even though [he or] she did not 12

16 perform the tests first hand. McGowen, 859 So.2d at 340. Frazure met this standard, and the trial court did not abuse its discretion by allowing him to testify. Grim had the opportunity to confront and cross-examine Frazure at trial, which satisfied his Sixth Amendment right to confront the witness against him. Was Judge Bourgeois, in the absence of any contemporaneous objection based upon confrontation grounds, required, sua sponte, to exclude Gross s expert testimony. We think not. Had an appropriate objection been made Judge Bourgeois would have been entitled to rely upon the Supreme Court s holding in Jenkins v. State, supra, 102 So.3d 1063, 1065 ( 5), where the Court approved of Circuit Judge Gargiulo s finding... that Gross s participation as the technical reviewer was sufficient to satisfy the Sixth Amendment right to confrontation. A divided Supreme Court agreed with the Court of Appeals... the circuit court did not abuse its discretion by allowing Gross to testify regarding t]he laboratory report and his conclusion that the substance seized from Jenkins was cocaine. Jenkins s constitutional right to confrontation was not violated. Jenkins v. State, supra, 102 So.3d 1063, 1069 ( 20). Parker says that [a]llowing Gross to testify regarding decisions based on data gathered by another scientist presupposes that the scientist in training was reliable and honest in her data gathering, and that she has the necessary education and training to even perform the testing. (Brief of the Appellant at 9) Our response to this observation is this. Given Gross s vast knowledge about the underlying testing process, the sufficiency and accuracy of the data collected, and his responsibilities in the training of a new laboratory scientist, any questions dealing with those matters, as well as other matters like fraud and competency, could have been propounded to Gross. They were not. (R. 142) 13

17 Here Gross, much like the analyst in Galloway... personally analyzed the data generated by each test conducted by [Carnes.] Galloway v. State, 122 So.3d at 637 ( 48). Significant colloquy during cross-examination and re-examination is re-quoted as follows: Q. [CROSS EXAMINATION BY MS ELLIS:] Mr. Gross, did you personally conduct the analysis on this marijuana? A. I was involved in the analysis. I didn t personally collect all of the data. Much of that work was done by Tasha Carnes. Q. Okay. So you did personally or you did not personally do the analysis? A. I did not personally collect all the data. I supervised the analysis, and I made all of the decisions based on the data that was collected, and I made the identification. (R. 142) * * * * * * Q. [REDIRECT EXAMINATION BY MS BAKER:] Mr. Gross, in talking about your specific roles at the crime lab, you testified that you test substances to determine if they are controlled, correct? A. Yes. Q. Do you test for fingerprints? A. No. Q. And can you tell me, Mr. Gross, you said that you were overseeing the work and supervising it. Did you yourself sign off on the ultimate report, the final report? A. Yes, I did. And all of the data and all of the work that was done I personally supervised. Q. And was that important to you to do in this case? A. Excuse me? Q. Was that important for you to do in this case? 14

18 A. Yes. Q. Was that standard procedure for you to do? A. Yes, that is standard procedure. As a laboratory trainee reaches a certain point in their development, they need to actually examine samples, and it s my job to supervise those persons as they examine samples. Q. And you said that you made the ultimate identification? A. Yes, I did. Q. And again, your expert opinion what s contained in these boxes based on your identification? A. Yes. Q. What substance is it? A. Marijuana. (R ) Gross observed and reviewed the work of the analyst assigned to test the substance in question. The tests involved were microscopic examination and a gas chromatography mass spectroscopy examination. (R ) Although Gross did not personally collect the data, he was involved in the analysis by making all of the decisions based on the data collected by Carnes. Gross made the ultimate identification and signed the final report. (R. 143) All of the data and all of the work done was personally supervised by Gross. (R. 143) [I]t s my job to supervise those persons as they examine samples. (R ) [emphasis ours] This testimony strongly suggests that even if Gross did not participate in the testing of the substance, he observed Carnes s testing of the substance, and he signed the final report. By analogy, Carnes took the patient s temperature while Gross determined whether the patient was febrile or afebrile. Gross, who had intimate knowledge of the report and was actively 15

19 involved in the production of the report, was available for cross-examination. This state of affairs satisfies the Sixth Amendment right to confrontation. Thirty-two (32) years of on-the-job training as a drug analyst and six (6) years as associate director and laboratory manager qualifies Gross as a reliable trainer of trainees. We respectfully submit the testimony of Gross passes muster under the reliability concerns of the Supreme Court cases cited and relied upon by Parker. Next, we respectfully point out the admission of expert testimony is within the sound judicial discretion of the trial judge. McGilberry v. State, 741 So.2d 894 (Miss. 1999), reh denied, cert denied, post-conviction relief denied, reh denied. The Supreme Court will not reverse such a decision absent a showing that this discretion has been abused. Jenkins v. State, supra, 102 So.3d 1063, 1065, 1069 ( 7 and 20, respectively) and the cases cited therein. The Supreme Court found no abuse of discretion in Jenkins. In keeping harmony with the doctrine of stare decisis - to abide by, or adhere to, decided cases - it should find none here. A final thought driven home is better than three left on base. Parker s argument is procedurally barred. There was no motion in limine or contemporaneous objection to the admissibility of the test results or the testimony of Gross on confrontation grounds or any other ground. In this posture, any argument has not been preserved; rather, it has been waived and is procedurally barred. Parker s complaint in his motion for a new trial filed two weeks post-verdict came much too late. (C.P ) We note with interest the matter was not even mentioned during the hearing conducted on August 4, (C.P. at ) No error, plain or otherwise, is involved here. Accordingly, the contemporaneous objection 16

20 rule is alive and well and should be applied to the argument presented by Parker. CONCLUSION Two hundred pounds of marijuana inside nine (9) feed bags tucked inside the trunk of the rented automobile that Parker was driving could hardly have gone undetected by Parker. The testimony at trial was wholly sufficient for a finding by a reasonable and fair-minded juror that Parker was aware of the presence and character of the contraband and was guilty of possession with intent. It is Timothy Gross s job to supervise his trainees as they examine samples. (R ) Gross examined the data collected by Carnes and made the ultimate identification. Gross had intimate knowledge of the final report and was actively involved in the production of the report. Because Gross was available for cross-examination, Parker s constitutional right to confrontation was not violated. Appellee respectfully submits that no reversible error took place during the trial of this cause and that the judgment of conviction of possession of marijuana with the intent to transfer or deliver, together with the twenty (20) year sentence with ten (10) years suspended followed by three (3) years of PRS should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

21 CERTIFICATE OF SERVICE I, BILLY L. GORE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 29th day of April, Honorable Lawrence P. Bourgeois, Jr. Circuit Court Judge P.O. Box 1461 Gulfport, MS Honorable Joel Smith District Attorney P.O. Drawer 1180 Gulfport, MS Mollie M. McMillin, Esq. Office of State Public Defender Indigent Appeals Division P.O. Box 3510 Jackson, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL 18