IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-KA-00411-COA
LEONARD STEVENSON A/K/A LEONARD APPELLANT STEVENSON, JR. A/K/A LENARD STEVENSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/10/2021 TRIAL JUDGE: HON. W. ASHLEY HINES COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: WILLIE DWAYNE RICHARDSON NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/14/2023 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.
McDONALD, J., FOR THE COURT:
¶1. Following a jury trial in the Washington County Circuit Court, Leonard Stevenson
was convicted of capital murder. The circuit court sentenced Stevenson to serve life in
prison without eligibility for parole. Stevenson now appeals his conviction, arguing that the
circuit court erred when it allowed a forensic pathologist to testify remotely in violation of
the Confrontation Clause. After a review of the record, arguments of counsel, and relevant
caselaw, we affirm Stevenson’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. On February 6, 2017, musicians Billy Smiley (Smiley) and Leonard Stevenson (Stevenson) traveled to Greenville, Mississippi, to play in a band concert. At some point
during their ride home, Stevenson and Smiley had a dispute over payment for Stevenson’s
services. Allegedly, while in Smiley’s truck, Stevenson stabbed Smiley multiple times.
Despite his injuries, Smiley managed to drive to his home, where he informed his brother and
friend that Stevenson had tried to rob him. Smiley was transported to the University of
Mississippi Medical Center where he died three days later.
¶3. On December 20, 2017, a Washington County grand jury indicted Stevenson of capital
murder in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Supp. 2015),
charging him with Smiley’s murder during the commission of a robbery.1 Stevenson’s case
was continued several times between April 23, 2018, and January 25, 2021.
¶4. On September 10, 2019, the State filed a motion requesting that Dr. Lisa Funte, the
forensic pathologist, be allowed to remotely testify live during trial through Zoom, Skype,
or some other similar medium that allowed for the testimony to be presented to the jury in
1 Section 97-3-19(2)(e) provides:
(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
....
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies . . . .
2 real-time. In its motion, the State asserted that Dr. Funte had conducted Smiley’s autopsy
but that she was then working in Maine. Further, the State contended that Dr. Funte’s
primary responsibility was with her current employer in Vienna, Maine; that Vienna is
approximately 1,600 miles from Jackson, Mississippi; and that the costs associated with Dr.
Funte’s travel back to Mississippi for testimony were considerable. The State argued that
allowing Dr. Funte to testify remotely was similar to taking deposition testimony pursuant
to Mississippi Rule of Criminal Procedure 17.5, i.e., when exceptional circumstances exist,
and the interest of justice is served.
¶5. The State further stated that allowing Dr. Funte to testify live via Zoom or Skype
offered the parties the opportunity for contemporaneous objections, responses, and rulings.
In support of its request, the State cited Mississippi Rule of Evidence 617, which allows a
minor abuse victim’s testimony to be given outside of the courtroom and shown by means
of closed-circuit television in the courtroom. The State argued that the ability to view Dr.
Funte in real-time and offer “on the spot” objections, responses, and rulings was akin to the
witness being physically present on the witness stand and would result in no prejudice to the
defendant.
¶6. The State also attached a memorandum from Dr. Funte to its motion. In her
memorandum, Dr. Funte stated that she had conducted Smiley’s autopsy on February 13,
2017, but had been employed by the State of Maine since 2018. She stated that there was
only one major airport in Maine and that there were no direct flights from Maine to
3 Mississippi. According to Dr. Funte, it would take her two days of travel for her to attend
Stevenson’s trial. In addition, Dr. Funte stated that she was one of only two doctors working
in her Maine office; thus, her absence placed a significant burden on others.
¶7. Dr. Funte’s fee schedule was also attached to the State’s motion. Pursuant to the fee
schedule, the county would be charged $4,000 for Dr. Funte’s time to attend the trial for two
days. The county would have also been responsible for Dr. Funte’s travel expenses including
her flight, hotel, transportation, and meals.
¶8. Stevenson did not file a response to the State’s motion and on November 22, 2019,
the circuit court entered an order permitting Dr. Funte to testify remotely. In its order, the
court stated that there would be real-time observation of Dr. Funte by the jury and counsel
for both the State and the defendant would be given the opportunity for contemporaneous
objections and responses.
¶9. On February 8, 2021, the case was tried in the Washington County Circuit Court. At
trial, Smiley’s brother James testified that on the day of the incident, he was lying across his
bed looking out his window when he saw his brother pull up at the house. James stated that
Smiley had just finished playing at a blues show. James testified that he watched Smiley
open the door of his white truck and fall out. After Smiley fell out of the truck, he began
calling for James. James went outside and called for Smiley’s son to come outside as well.
Smiley told James that Stevenson had stabbed him and tried to rob him. According to James,
Smiley was covered in blood.
4 ¶10. Smiley’s friend, Michael Carter testified that he was renting a room at Smiley’s house
when the incident occurred. After James informed him that something was going on outside,
Carter exited the house to find Smiley lying on the ground with blood all over him. Carter
stated that Smiley was barely moving. According to Carter, it looked like Smiley had been
stabbed in his arms and face. He stated that Smiley’s face was bruised. After asking Smiley
several times what had happened to him, Carter stated that Smiley told him that “Leonard
[Stevenson] did this.” Carter said that he had seen Smiley and Stevenson together several
times and that Smiley had taught Stevenson how to play the guitar.
¶11. Investigators Danny Poe and Eric Sutton also testified at trial. Poe stated that on
February 6, 2017, he was dispatched to 1292 Garden Drive, to respond to an aggravated-
assault call. He stated that when he arrived at the scene, he noticed a white truck still running
in the driveway. Poe testified that he looked in the vehicle and saw blood on the steering
wheel, center console, and outside the vehicle. According to Poe, Smiley had been placed
in the ambulance while he was still bleeding but conscious and able to talk. Smiley informed
Poe that Stevenson tried to rob him and “did this to [him].” Poe testified that he observed
several injuries to Smiley’s face, the top of his head, and his chest area. Sixteen photos of
the crime scene were marked and admitted into evidence.
¶12. Sutton testified that when he responded to Smiley’s residence, Smiley had already
been transported to the hospital by ambulance. Sutton stated that through investigation,
Stevenson had been identified as a suspect. Sutton stated that he and other investigators went
5 to Stevenson’s sister’s home to execute a search.2 Pictures of the residence were entered into
evidence showing blood stains on the sidewalk outside the residence. Sutton also stated that
there were boots and other articles of clothing that appeared to have blood on them found in
the room where Stevenson had been staying.
¶13. Dr. Funte testified remotely at trial.3 After the State tendered Dr. Funte as an expert
in forensic pathology, she testified that during Smiley’s autopsy she noted several “sharp
forced injuries” to his body. She further stated that there were at least eleven incised wounds
on the body and the head and at least six stab wounds identified on the head and body.
Photographs taken during the autopsy were marked and entered into evidence. Dr. Funte
determined that the cause of death was “sharp forced injuries” and that the manner of death
was homicide.
¶14. Stevenson cross-examined Dr. Funte regarding her autopsy report and documents that
accompanied it. Dr. Funte admitted that she did not have a copy of the police report, the
EMS run sheet, or the ER and hospital records when she examined Smiley. Dr. Funte stated
that the documents would have provided her with a timeline of events that occurred after the
injuries were received. Dr. Funte further stated that although she did not have Smiley’s full
case history when she conducted her examination, she did have the information that was
2 Stevenson’s sister Kanesha Brown signed a consent to search form, which was marked and entered into evidence. 3 At trial, Stevenson raised no objections to Dr. Funte’s remote testimony.
6 provided by the coroner.4 Dr. Funte testified that despite not having Smiley’s full case
history, she was still able to make the determination that the stab wounds caused his death.
Dr. Funte’s report was entered into evidence.
¶15. On redirect, although she had not reviewed any of Smiley’s hospital records, Dr. Funte
stated that she did not find any evidence indicating that Smiley’s surgical wounds had
contributed, impacted, or played a part in his death.
State: Dr. Funte, you were asked about medical intervention and Mr. Smiley being in the hospital or in medical care for three days. What evidence of medical intervention did you find at the time of the autopsy?
Dr. Funte: Again, I mentioned the chest tube that was in place as well as the sutures and staples used to close some of the injuries, and that was the primary medical intervention that was present.
State: And the evidence of medical intervention that you found and observed at the time of the autopsy in your expert opinion - -
Dr. Funte: I’m sorry. He also had a surgical wound in the abdomen which was closed with a wound VAC.
State: And those items, when you conducted this autopsy, did you find any forensic pathological evidence that they in any way contributed, impacted or played a part in actually causing him to expire?
Dr. Funte: No.
State: And again, you were also asked about the period of time he spent in medical care from the time of injury up until he arrived
4 Dr. Funte did not specify what documents the coroner provided or what information she obtained from them.
7 at your office. And just so we’re clear, him being stabbed on February 6th, deceased on the 9th, and you observed him, the timeline, the time he spent in the hospital, the time between the stabbing and the autopsy, did that have any impact on determining what your determination as to cause and manner were?
Dr. Funte again stated that the manner of death in this case was homicide, and the collective
exhibit of autopsy photos were entered into evidence.
¶16. Stevenson then moved to strike Dr. Funte’s testimony, arguing it was “not within a
reasonable degree of pathological certainty” as to the nature of Smiley’s injuries. Stevenson
argued that because Dr. Funte did not get Smiley’s medical records, the police report, or the
ER records, her testimony was based on assumptions and not evidence. The judge overruled
Stevenson’s objection, stating:
I think she made a determination on the cause and manner of death. I’ve never heard of a forensic pathologist refer to medical records in an autopsy report. I’ve never heard of that and I’ve heard many, many witnesses like this testify and I’ve never heard of them refer to anything in the medical records. They always make their judgment on examination.
The circuit court further stated that because Dr. Funte said that she had made a determination
of the cause of death, it was a question for the jury.
¶17. After the State rested, Stevenson moved for a directed verdict. Stevenson argued that
the State had “failed to prove a prima facie case specifically as to theft and murder or first-
degree murder.” Stevenson further stated that there had been no showing of the underlying
crime or offense of robbery. He argued that the witnesses who spoke with Smiley that night
8 testified Smiley said that Stevenson had “tried” to rob him, not that he had in fact robbed
Smiley. Thus, Stevenson argued that the State’s evidence fell short on this point. The State
argued that whether Stevenson had actually taken money from Smiley was a jury question.
Finding the State’s argument compelling, the court overruled Stevenson’s motion for a
directed verdict.
¶18. Stevenson was the last witness to testify at trial. He stated that he was a church
musician and had been playing with Smiley in church since he was thirteen or fourteen years
old. Stevenson testified that on the day of the incident, he met Smiley at a blues bar in
Greenville to perform. Stevenson stated that from his understanding it was a “gig, gig, not
like a fundraiser.” He stated that at a fundraiser they would play to raise funds for a
particular cause, but when he performed a “gig” he got paid. Therefore, Stevenson was
under the impression that he would get paid for his performance that night. After the
performance, while loading the band equipment in the van, Stevenson stated that he noticed
the club owner give Smiley money.
¶19. Stevenson asked Smiley for a ride home, and they discussed Stevenson’s payment on
the way to Smiley’s home. Stevenson stated that Smiley told him he was not getting paid for
the show. Once they arrived at Smiley’s home, Stevenson mentioned getting paid again, and
an argument ensued. According to Stevenson, Smiley told him that he did have money for
him, but in order for him to get it, Stevenson would have to perform sexual activities with
him. Stevenson testified that Smiley specifically stated, “I will give you $300 if you let me
9 f*** you.” Stevenson stated that Smiley then began groping his leg. According to
Stevenson, he “snapped” and was “just fed up with [Smiley] steady bringing up the issue of
sex.”5 Stevenson stated that when he pulled out his knife, he and Smiley began to “tussle.”
According to Stevenson, he did not attempt to rob Smiley. After the incident in Smiley’s
truck, Stevenson walked to his friend’s home and asked his friend to drive him to Little
Rock.
¶20. At the end of the trial, the jury found Stevenson guilty of capital murder, and the
circuit court sentenced him to serve life in prison without parole.
¶21. On February 22, 2021, Stevenson filed a motion for judgment notwithstanding the
verdict (JNOV) or, in the alternative, a new trial. In his motion, Stevenson alleged that the
circuit court erred when it (1) failed to strike the pathologist’s testimony, (2) did not allow
into evidence Stevenson’s self-authenticated mental health records from Life Help, (3)
denied Stevenson’s motion for a mistrial because of the State’s alleged violation of his Fifth
Amendment rights to cross-examination,6 (4) denied Stevenson’s motion for expert witness
funds for a psychological expert of Stevenson’s choice, and (5) prohibited Stevenson from
presenting evidence of his only defense, which allegedly would have been supported by the
5 Stevenson testified that on two prior occasions, Smiley had made sexual advances towards him and had offered him money in exchange for sex. Stevenson stated that he had declined on those prior occasions but did not tell anyone about Smiley’s advances towards him. Stevenson also stated that he had been sexually assaulted when he was seven years old by his older brother. 6 This alleged constitutional violation was not raised on appeal.
10 psychological expert of Stevenson’s choice.
¶22. The circuit court entered an order denying Stevenson’s post-trial motion on February
23, 2021. Stevenson now appeals his conviction, raising as the sole issue whether the circuit
court erred when it allowed Dr. Funte to testify remotely in violation of the Confrontation
Clause.
STANDARD OF REVIEW
¶23. “Constitutional issues are reviewed de novo.” Buchanan v. State, 316 So. 3d 619, 624
(¶18) (Miss. 2021). “[I]f a confrontation clause violation is found, the violation is subject
to a harmless-error analysis.” Sanders v. State, 228 So. 3d 888, 890 (¶8) (Miss. Ct. App.
2017) (citing Conners v. State, 92 So. 3d 676, 684 (¶20) (Miss. 2012)). “Where the
improperly admitted evidence is largely cumulative of other evidence before the jury, and the
evidence presented against the defendant, taken as a whole, is overwhelming, the error may
be harmless.” Id. at 891 (¶13).
DISCUSSION
I. Procedural Waiver
¶24. Stevenson argues that the circuit court erred in allowing Dr. Funte to testify remotely
during the trial. However, Stevenson failed to respond to the State’s pre-trial motion
requesting that Dr. Funte be allowed to testify remotely. At trial Stevenson also failed to
make a contemporaneous Sixth Amendment objection to the admission of Dr. Funte’s remote
testimony. Moreover, Stevenson failed to raise this constitutional challenge in any of his
11 post-trial motions.7 As a general rule, if not asserted at the trial level, constitutional
questions are waived or forfeited. Rogers v. State, 928 So. 2d 831, 834 (¶8) (Miss. 2006)
(holding that constitutional questions not raised at the lower court will not be reviewed on
appeal). Because Stevenson failed to object to Dr. Funte’s remote testimony, this issue was
not preserved for appellate review and is procedurally barred. Conners, 92 So. 3d at 682
(¶15).
¶25. Notwithstanding the procedural bar, because Stevenson’s challenge involves a
fundamental and substantive right, we will assess whether the alleged violation constituted
plain error. The Mississippi Supreme Court has held that “[u]nder the plain-error doctrine,
we can recognize obvious error which was not properly raised by the defendant and which
affects a defendant’s fundamental, substantive right.” Id. In Conners, the Mississippi
Supreme Court held that a Confrontation Clause violation is a violation of a fundamental,
substantive right. Id.; see also Ezell v. State, 132 So. 3d 611, 612 (¶3) (Miss. 2013) (A
Confrontation Clause violation is a violation of a fundamental, substantive right.).
Therefore, the supreme court has examined whether a defendant’s alleged Confrontation
Clause violation resulted in a manifest miscarriage of justice, despite the defendant’s failure
7 Although Stevenson moved to strike Dr. Funte’s testimony at trial, he did not do so on the ground that her remote testimony violated his Confrontation Clause rights. In addition, Stevenson’s JNOV motion failed to raise or address this constitutional challenge before the circuit court.
12 to preserve the issue for appellate review.8 Id. Thus, notwithstanding Stevenson’s
procedural bar, because a Confrontation Clause violation is a fundamental, substantive right,
we proceed with our examination of this issue for plain error.
¶26. “Both the United States Constitution and the Mississippi Constitution guarantee a
defendant in a criminal prosecution the right to confront the witnesses against him.”
Buchanan, 316 So. 3d at 624 (¶19). “Upon review, if a Confrontation Clause violation is
found, the violation is subject to a harmless-error analysis.” Sanders, 228 So. 3d at 890 (¶8).
Thus, even if it is determined that a violation has occurred, “an otherwise valid conviction
should not be set aside if the reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable doubt.” Id. at 891 (¶13). “Where
the improperly admitted evidence is largely cumulative of other evidence before the jury, and
the evidence presented against the defendant, taken as a whole, is overwhelming, the error
may be harmless.” Id.
II. Confrontation Clause Violation
¶27. Although Mississippi appellate courts have addressed Confrontation Clause violations
8 In Conners, the defendant argued for the first time on appeal that the admission of two forensic reports in the absence of testimony from the analysts who performed the tests violated his Sixth Amendment right to confrontation. Conners, 92 So. 3d at 682 (¶13). The Mississippi Supreme Court stated that Conners was procedurally barred from raising the issue on appeal because he failed to object to the admission of either report at trial. Id. at (¶15). Despite this failure, Conners argued that the court should consider the issue under the plain-error doctrine. Id. The supreme court applied the doctrine, and held that “although a Confrontation-Clause violation occurred at Conners’s trial, because the error was harmless, no manifest miscarriage of justice resulted.” Id.
13 when minors have testified, they have not addressed the issue of whether an adult witness’s
testimony via two-way live video violates the Confrontation Clause; other jurisdictions have.
In making their determination, these courts have applied Coy v. Iowa, 487 U.S. 1012 (1988),
and the Craig test outlined by the United States Supreme Court in Maryland v. Craig, 497
U.S. 836, 850 (1990), which are both child sex abuse cases. However, from these cases has
emerged the principle that the State must raise a public policy necessity to support the
method used to secure witness testimony.
¶28. In Coy, the United States Supreme Court held that Coy’s Sixth Amendment rights
were violated when a screen was placed between him and two complaining child witnesses,
which blocked the appellant from their sight. Coy, 487 U.S. at 1012. Coy was arrested and
charged with sexually assaulting two thirteen-year-old girls. Id. at 1014. At trial, the State
made a motion pursuant to an Iowa statute that allowed the “complaining witnesses to testify
either via closed-circuit television or behind a screen.” Id. The trial court granted the State’s
motion over the appellant’s objection and Coy was convicted of two counts of engaging in
lascivious acts with a child. Id. at 1015. Coy appealed and the Iowa Supreme Court affirmed
his conviction. Id. On appeal, the United States Supreme Court declined to address whether
specific exceptions to a defendant’s right to confront witnesses existed. Id. at 1021
(emphasis added). The court did however state that exceptions would be “allowed only when
necessary to further an important public policy.” Id. Therefore, the court held that since
there had been “no individualized findings that these particular witnesses needed special
14 protection, the judgment here could not be sustained by any conceivable exception.” Id.
Thus, the supreme court reversed the judgment of the Iowa Supreme Court and remanded the
case for further proceedings. Id. at 1022.
¶29. In Craig, another child sex abuse case, the United States Supreme Court held that
although “the Confrontation Clause reflects a preference for face-to-face confrontation at
trial,” it is a preference that “must occasionally give way to considerations of public policy
and the necessities of the case.” Craig, at 497 U.S. at 849. In that case, a Maryland statutory
procedure allowed the judge to “receive, by one-way closed circuit television, the testimony
of a child witness who is alleged to be a victim of child abuse.” Id. at 840. The supreme
court assessed whether the “use of the procedure [was] necessary to further an important state
interest.” Id. at 852. The Court concluded that “a State’s interest in the physical and
psychological well-being of child abuse victims may be sufficiently important to outweigh,
at least in some cases, a defendant’s right to face his or her accusers in court.” Id. at 853.
Although Craig narrowed the findings needed for the protection of minors testifying in sex
abuse cases, it reiterated Coy’s requirements, holding:
As we suggested in Coy, our precedents confirm that a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.
Id.
¶30. Since it was decided, several courts have applied the Craig test when determining
15 whether two-way live testimony of adult witnesses is permitted. Under the first prong, the
trial court must make a case-specific finding “that denial of physical face-to-face
confrontation is necessary to further an important public policy.” State v. Mercier, 479 P.3d
967, 974 (Mont. 2021). The second prong “requires the trial court to determine that
reliability of the testimony is otherwise assured.” Id.;9 see also United States v. Carter, 907
F.3d 1199, 1208 (9th Cir. 2018).
¶31. In Mercier, 479 P.3d at 976, the Montana Supreme Court considered whether the trial
court erred in finding that an agent’s testimony via two-way video was necessary to further
an important public policy under the first prong of the Craig test. Id. Mercier was convicted
of two crimes: deliberate homicide of his ex-girlfriend, Sheena Devine, and tampering with
physical evidence, i.e., Sheena’s cell phone. Id. at 972. On October 5, 2016, Mercier went
9 Courts have noted that the reliability prong of the Craig test has been called into question by a later United States Supreme Court case, Crawford v. Washington, 541 U.S. 36 (2004). Crawford involved the admission of hearsay testimony allegedly in violation of the Confrontation Clause. Justice Scalia, writing for the majority, stated that “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability.” Id. at 61. The court further stated that “[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.” Id. While Crawford did not explicitly overrule Craig, some courts have argued that at least it may have overruled the reliability prong. See Haggard v. State, 612 S.W.3d 318, 326 (Tex. Crim. App. 2020) (stating Crawford implicitly overruled Craig, or at least the reliability prong); State v. Smith, 636 S.W.3d 576, 584-85 (Mo. 2022) (stating Crawford transformed the Supreme Court’s approach to the Confrontation Clause from a case-by-case reliability- balancing test to a categorical rule). Despite Crawford’s holding, Craig’s test is still used by courts to determine whether a constitutional violation has occurred when two-way live testimony is permitted and a party challenges the necessity of the remote testimony.
16 to Sheena’s home and began pelting her vehicle with rocks. Id. at 971. Sheena’s neighbors
called 911, but Mercier fled prior to an officer’s arrival. Id. Later that evening, Mercier
“returned to Sheena’s residence and again threw rocks at her vehicle.” Id. “Instead of
contacting police, Sheena went outside and confronted Mercier.” Id. According to Mercier,
Sheena attacked him, and he placed her “in a sleeper hold to thwart her attack, resulting in
Sheena losing consciousness.” Id. Mercier stated that he then carried Sheena into her home
and left within five to ten minutes. Id. According to Mercier, “Sheena was breathing and
snoring when he left.” Id.
¶32. The next morning, Sheena’s friend called 911, requesting medical assistance for a
possible assault. Id. “An emergency medical technician arrived first and determined that
Sheena had died.” Id. At the scene, police “discovered Sheena’s cell phone submerged in
a pot of greasy water in the kitchen sink.” Id. Sheena’s phone remained operational despite
being submerged the water. Id. “However, local technicians struggled to retrieve
information from the device,” and it was sent to Agent Brent in Colorado, who specialized
in extracting data from electronics. Id.
¶33. Prior to trial, the State requested that Agent Brent be allowed to testify from Colorado
by live two-way video. Id. “As grounds, the State offered that the $670 for round-trip air
travel and other travel expenses for purely foundational testimony was impractical.” Id.
Over Mercier’s objection, the district court permitted Agent Brent to testify via two-way
videoconferencing at trial. Id. Agent Brent testified about the methods and equipment used
17 to retrieve data from the cell phone, and “the phone’s contents, particularly, two time-
stamped photographs retrieved from the phone.” Id. The photographs were the only
evidence showing that Mercier was in Sheena’s home and had handled Sheena’s phone at the
time the photos were taken, directly contradicting the time Mercier said he left the home. Id.
¶34. The Montana Supreme Court stated that “[c]ourts are essentially uniform in requiring,
under the first prong [of Craig’s test], something more than generalized findings of policy
concerns.” Id. at 974. The trial court held that “the significant time and expense required
for [Agent Brent] to testify in-person outweighed any perceived diminution of Mercier’s
confrontation right . . . .” Id. at 976. However, the supreme court stated that the “case-
specific findings demonstrating the necessity of [Agent Brent’s] testimony [was] not entered
here.” Id. The court stated that based on the record, the remote testimony was “permitted
for the stake of generalized judicial economy,” and “[a]lthough judicial economy may be an
important public policy in other contexts, standing alone, it must yield to the constitutional
rights of the accused.” Id. Thus, the supreme court held that Agent Brent’s “testimony was
improperly admitted,” and “[i]ts necessary exclusion means there was no foundation for
admission of the two . . . photographs extracted from Sheena’s cell phone, which must be
excluded as well.” Id. at 977.
¶35. Next, the Montana Supreme Court assessed whether the court’s error (admitting Agent
Brent’s remote testimony) was harmless. In making its determination, the supreme court
stated that it was required to “consider the importance of the witness’ testimony in the
18 prosecution’s case, whether the testimony was cumulative, and the presence or absence of
evidence corroborating or contradicting the testimony of the witness on material points.” Id.
Accordingly, the supreme court stated that harm is assessed by “whether the fact-finder was
presented with admissible evidence that proved the same facts as the tainted evidence
proved.” Id. Concerning the charge of deliberate homicide, the court held that the
Confrontation Clause violation was harmless because the State presented an eyewitness who
observed Mercier inside Sheena’s home around midnight—the same time the photographs
retrieved from the cell phone were taken in the house and time-stamped. Id. at 978.
¶36. However, concerning the charge of tampering with physical evidence, the court held
that the error was not harmless because the photographs were the only evidence supporting
the State’s allegation that Mercier used Sheena’s cell phone. Therefore, the court held that
the evidence in this sense was tainted by the Confrontation Clause violation and set aside
Mercier’s conviction for tampering with physical evidence. Id. at 978.
¶37. We note that the Montana Supreme Court has also held that under certain
circumstances, permitting remote witness testimony will not violate a defendant’s
confrontation rights. In City of Missoula v. Duane, 355 P.3d 729, 734 (Mont. 2015), the
Montana Supreme Court held that the municipal court did not err when it allowed a
veterinarian, who conducted a necropsy on a dog, to testify remotely in four misdemeanor
cases. Id. In that case, the defendant and two others owned dogs and were charged with
animal cruelty. Each defendant requested a separate trial and the cases were severed. Id.
19 Prior to Duane’s trial, the City filed a motion requesting that the veterinarian, who had
performed the necropsies on the animals, be allowed to testify by two-way video because she
had moved her practice to California. Id. “The city asserted that requiring [the doctor] to
travel to and testify in person at three separate trials would impose a significant burden on
[the doctor].” Id. Over Duane’s objection, the municipal court granted the City’s motion,
stating that the veterinarian’s “Skype testimony would suffice and would not violate Duane’s
constitutional right to confrontation.” Id. At the end of his trial, the jury found Duane guilty
and upon notice of his intention to appeal, the municipal court stayed his sentence. Id. On
appeal, the Montana Supreme Court held that the municipal court did not err in allowing the
veterinarian to testify remotely. Id. at 733. The supreme court stated that the City had made
a “compelling showing that requiring [the veterinarian] to travel to Missoula from California
to testify live at three separate trials would impose a prohibitive expense on the City and a
significant burden on [the veterinarian].” Id. In summary, the remote testimony in this case
did not constitute a violation of the defendant’s confrontation rights because the court held
that it was impractical to require the veterinarian to travel to Montana for three separate trials
on misdemeanor charges.
¶38. More recently, in State v. Smith, 636 S.W.3d 576 (Mo. 2022), the Missouri Supreme
Court reversed a defendant’s conviction holding that the admission of an expert’s testimony
via two-way live video violated the defendant’s confrontation rights. Id. at 587. In that case,
I.S., who was sixteen years old at the time, alleged that she had been sexually assaulted by
20 Smith. Id. at 578. I.S. was taken to the “hospital, where an emergency-room physician took
swabs from I.S.’s body for a sexual assault kit.” Id. Hall “collected a buccal swab from
Smith, and completed a DNA analysis and laboratory report.” Id. “Hall’s work showed the
unknown male DNA from I.S.’s sexual assault kit matched the DNA from Smith.” Id. The
DNA Section Supervisor, Kwiatkowski, reviewed and approved Hall’s report. Id. The
defendant was charged with two counts of statutory rape in the second degree. At trial, the
State called Kwiatkowski to testify about I.S.’s DNA samples and the “DNA on such samples
matching unknown male DNA.” Id. The State did not initially call Hall to testify because
he was on paternity leave. Id. “The State sought to present evidence of Smith’s buccal
swabs through Kwiatkowski, but Smith objected.” Id. After a discussion between the
parties, the State requested that the circuit court allow Hall to testify remotely. Id. The
circuit court granted its request over Smith’s objection. Id. Smith was convicted of two
counts of statutory rape. Id.
¶39. Smith appealed and after a thorough examination of Coy, Craig, and Crawford, the
Missouri Supreme Court held that the circuit court had failed to make a finding that the
expert was unavailable, therefore allowing the expert to testify remotely violated the
defendant’s confrontation rights. Id. at 587. The supreme court also held that the error was
not harmless beyond a reasonable doubt because the evidence from Hall was the only
physical evidence proving sexual contact between the defendant and the victim. Id. The
supreme court reversed the circuit court’s judgment and remanded the case.
21 ¶40. In the present case, our analysis focuses on the first prong of Craig’s test, whether
allowing Dr. Funte to testify remotely furthered an important public policy. Stevenson
argues no exceptional circumstances were shown, and no important public policy justified
allowing Dr. Funte to testify remotely. Stevenson further argues that he was denied a
constitutional right where no exception to the right had been specified by rule and recognized
as a compelling state interest.
¶41. By attaching Dr. Funte’s memorandum to its motion, the State attempted to make a
public fiscal policy argument to satisfy the first prong of the Craig test. In her memorandum,
Dr. Funte stated that she would make every reasonable effort to appear in court to testify, but
it would take two days of travel for her to attend Stevenson’s trial, that it would
inconvenience the other doctor in her Maine office, and her time would cost the state $4,000.
¶42. But in its order granting the request to use live video testimony the circuit court did
not address the State’s public-policy-necessity argument but, instead, only addressed the
reliability prong of Craig’s test stating:
[T]here will remain (1) real-time observation of the witness by the jury and counsel for both the State and the defendant, (2) the opportunity for contemporaneous objections and responses, and (3) the facilitation of immediate rulings from the court on any objections and other issues by the allowance of the said electronic testimony by way of live video.
Thus, as in Mercier, the circuit court here failed to make a “case-specific” threshold finding
of necessity for remote video testimony under the first prong of the Craig test. In Corbin v.
State, 74 So. 3d 333, 340 (¶21) (Miss. 2011), a case dealing with the admission of hearsay,
22 the Mississippi Supreme Court held that “[w]hen dealing with testimonial evidence, a finding
of reliability [alone] does not create an exception to the Confrontation Clause.” Id. The
supreme court further stated that “[w]here testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution
actually proscribes: confrontation.” Id. Here, Dr. Funte stated that she would make every
reasonable effort to appear in trial if required to do so. Therefore, she was available and the
State presented no evidence to the contrary. As the Montana Supreme Court held in Mercier,
“[a]lthough judicial economy may be an important public policy in other contexts, standing
alone, it must yield to the constitutional rights of the accused.” Mercier, 479 P.3d at 976; see
also United States v. Carter, 907 F.3d 1199, 1208 (9th Cir. 2018) (stating constitutional
rights cannot be neglected merely to avoid added expense or inconvenience); People v.
Jemison, 952 N.W.2d 394, 400 (Mich. 2020) (explaining expense is not a justification for a
constitutional shortcut). Despite the evidence of cost presented by the State, the circuit court
made no finding of necessity on that or any other basis. Therefore, we find that the circuit
court erred by permitting Dr. Funte to testify remotely in violation of Stevenson’s Sixth
Amendment confrontation right.
¶43. However, our holding on this matter is limited. We are not holding that remote
testimony violates the Confrontation Clause per se. Instead, we hold that such testimony may
be allowed if the trial court makes the requisite finding of necessity as well as reliability. In
this case, the reliability prong of the Craig test was clearly satisfied because Stevenson had
23 the opportunity to extensively cross-examine Dr. Funte, make contemporaneous objections,
and receive rulings in real-time; further no technical difficulties were noted in the record.10
But, despite the fact that the reliability prong was satisfied, the circuit court failed to make
the required finding of necessity, thus Stevenson’s rights were violated. This error, however,
was harmless as we will further discuss below. Thus, to reiterate, when a court makes the
requisite findings of both necessity and reliability, such remote testimony is permitted.
III. Harmless Error Analysis
¶44. Finding that Stevenson’s confrontation rights were violated, we must now determine
whether Stevenson was harmed by such a violation. As previously stated, “[w]here the
improperly admitted evidence is largely cumulative of other evidence before the jury, and the
evidence presented against the defendant, taken as a whole, is overwhelming, the error may
be harmless.” Sanders v. State, 228 So. 3d 888, 891 (¶13) (Miss. Ct. App. 2017). “Errors
are not harmless if they resulted in a manifest miscarriage of justice against the defendant.”
Id. Relevant factors in determining whether an error is harmless or prejudicial include
“whether the issue of innocence or guilt is close, the quantity and character of the error, and
the gravity of the crime charged.” Jones v. State, 287 So. 3d 995, 1011 (¶55) (Miss. Ct. App.
2019). “Whether a violation of the confrontation clause in a particular case may be classified
as harmless error depends upon a number of factors.” Raiford v. State, 907 So. 2d 998, 1004
10 We also note that Stevenson did not file a response to the State’s request to allow Dr. Funte’s remote testimony, he did not raise a confrontation objection at trial, and he did not raise this issue in his JNOV/new trial motion.
24 (¶15) (Miss. Ct. App. 2005) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Corbin, 74 So. 3d at 338-39 (¶16). In Corbin, the defendant was convicted of murder,
aggravated assault, and fleeing the scene of a car accident (a felony). Id. at 337 (¶8). Corbin
appealed his convictions arguing, among other things, that the trial court violated his Sixth
Amendment right to confrontation when it allowed the State to play a recorded statement
from the victim, who died before trial. Id. at (¶9). The Mississippi Supreme Court held that
because the victim’s statement was testimonial, its admission violated Corbin’s confrontation
rights and should have been excluded. Id. at 338 (¶14). The supreme court considered the
factors noted above and found that the trial court’s error was not harmless as to the
convictions of murder and aggravated assault because the statement was the only piece of
evidence showing that Corbin had purposely or knowingly caused the victim’s car wreck.
Id. at 339 (¶17). But the supreme court found that the error was harmless as to the conviction
of felony fleeing because “overwhelming evidence of Corbin’s guilt was properly submitted
to the jury.” Id. at 340 (¶22).
¶45. This Court has also found a constitutional violation not to be harmless in Jones, where
the defendant appealed his convictions arguing that “he was denied a fair trial when the
[circuit] court allowed the State to present evidence of another separate crime for which he
25 had not been tried or convicted.” Jones, 287 So. 3d at 999 (¶1). In that case, a detective
named Jaime White testified, among other things, about “evidence obtained through the
investigation of the later robbery that bore some similarities to [the victims in the current
case].” Id. at 1002 (¶18). The victims of the other robbery did not testify. At the end of
trial, the jury found Jones guilty of all charges, and he appealed. Id. at 1004 (¶28).
¶46. On appeal, this Court stated that White’s testimony amounted to testimonial hearsay.
Id. at 1007 (¶42). Thus, we held that “Jones’s right to confront the witnesses (i.e. the other
robbery victims) against him was violated when the State presented impermissible
testimonial hearsay about key elements of the later robbery through White, instead of calling
the actual victims as witnesses.” Id. at 1009 (¶49). We further held that “the court’s error
in admitting White’s testimonial hearsay and the physical evidence of the latter robbery [was]
not harmless” but instead constituted prejudicial error because Jones was deprived of his
right to cross-examine the witnesses of the other robbery. Id. at 1012 (¶57).
¶47. In contrast to Corbin and Jones, in Sanders we held that the defendant was not harmed
by the Confrontation Clause violation that occurred during his trial. Sanders, 228 So. 3d at
893 (¶19). In Sanders, during a police operation, a confidential informant, White, informed
Agent Brown that Sanders had sold him drugs. Id. at 889 (¶3). Because White was killed
before Sanders’s trial, his video “statement identifying Sanders was played at trial and in the
presence of the jury.” Id. at (¶12). This Court held that because “White’s statement was
testimonial, and Sanders never had the opportunity to cross-examine White, the circuit court
26 erred when it admitted White’s statement in violation of the Confrontation Clause of the
Sixth Amendment.” Id. Sanders argued that he suffered harm and was substantially
prejudiced by the admission of White’s statement at trial. Id. at (¶14). However, in addition
to White’s video statement identifying Sanders, the circuit court also “admitted still
photographs submitted by the State of screen-shots from the video,” which clearly showed
Sander’s face from multiple angles. Id. An investigator also identified Sanders from still
photos that were shown. Id. at (¶15). Therefore, because there was additional evidence
outside the tainted evidence that stemmed from the Confrontation Clause violation, we held
that “the circuit court’s error . . . was a harmless one, and as such, no manifest miscarriage
of justice occurred . . . .” Id. at 892 (¶16).
¶48. Here, however, as in Sanders, there was other evidence presented in addition to Dr.
Funte’s testimony and report from which a jury could conclude that Stevenson’s actions
caused Smiley’s death.11 James, Carter, and Poe testified that they observed Smiley covered
in blood with injuries to his face, head, and chest. These three witnesses all testified that
Smiley made dying declarations that Stevenson had caused his injuries; for example, Smiley
stated that “Leonard [Stevenson] did this.” In addition, at trial Stevenson admitted that he
11 In the present case, Dr. Funte’s testimony and autopsy report were admitted to establish Smiley’s manner and cause of death, which was an essential element required to satisfy section 97-3-19(2)(e). However, without Dr. Funte’s testimony, there was no foundation to admit her autopsy report. Thus, because we find that Dr. Funte’s testimony was admitted in violation of Stevenson’s confrontation rights, the autopsy report constituted tainted evidence that must also be excluded.
27 snapped, pulled out his knife, and “tussled” with Smiley.
¶49. Although Smiley did not succumb to his injuries until three days later, there was no
medical evidence of any intervening cause of death, and the jury could conclude that the
injuries Smiley sustained from Stevenson’s attack caused his death. In Watts v. State, 210
Miss. 236, 49 So. 2d 240, 241 (1950), a defendant was convicted of manslaughter and
appealed. In that case, it was alleged that the defendant had shot the victim after leaving a
night club. Id. The victim lived forty-eight days after the injury. Id. There were three
eyewitnesses to the shooting who testified that the defendant was the shooter. Id. On appeal,
the defendant argued that the State had failed to prove that the gunshot resulted in the
victim’s death. Id. At the trial, “no medical evidence was offered by the State” to establish
the victim’s cause of death. Id. However, the Mississippi Supreme Court stated:
While good trial practice recognizes the virtue of producing expert evidence as to the cause of death, where a considerable period of time elapses between the injury and the death, we think that the circumstances in this case were sufficient to prove beyond reasonable doubt that [the victim] met his death by reason of a wound inflicted by [the defendant]. At least, the evidence was sufficient to justify the jury in so finding.
Id. Thus, the defendant’s conviction was affirmed. Id. at 242.
¶50. This rationale was reiterated in Houston v. State, 220 Miss. 166, 70 So. 2d 338
(1954). In that case, a defendant was convicted of manslaughter after stabbing the victim in
the abdomen with a “long crab apple switch knife.” Id. at 398. Immediately after the
stabbing, the victim was taken to the hospital, where he died seventeen days later of uremia
poisoning. Id. On appeal, the defendant argued that the State failed to “prove causal
28 connection between the stab wound and the death of [the victim] . . . .” Id. at 339. The
supreme court held, however, that “[e]ven though the immediate cause of death was uremic
poisoning, the jury was fully justified in believing beyond a reasonable doubt that the stab
wound was a substantial contributing cause of death.” Id. at 340. Therefore, the court
affirmed the defendant’s conviction.
¶51. Likewise, in this case, even though Smiley died three days after he was stabbed, we
find that based on the evidence presented, the jury was justified in finding beyond a
reasonable doubt that the stab wounds caused Smiley’s death, even without Dr. Funte’s
testimony. Although allowing Dr. Funte to testify as the court did violated the Confrontation
Clause, there was no prejudicial error because the jury was presented with sufficient evidence
to find beyond a reasonable doubt that Stevenson had committed the crime.
CONCLUSION
¶52. Therefore, despite the procedural bar, we find that the circuit court violated
Stevenson’s constitutional right to confrontation by allowing Dr. Funte to testify remotely
because there was no case-specific determination of necessity made. However, because there
was other sufficient evidence to support the jury’s inference that the stab wounds resulted in
Smiley’s death, the error was harmless. Therefore, we affirm Stevenson’s conviction and
sentence.
¶53. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE AND McCARTY, JJ., CONCUR. WILSON, P.J., LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR IN PART
29 AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.