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Jenkins v. Hall

United States Court of Appeals, Fifth Circuit

December 13, 2018

ROBERT L. JENKINS, Petitioner - Appellant
PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS; RON KING, Superintendent, Central Mississippi Correctional Facility, Respondents - Appellees

          Appeal from the United States District Court for the Southern District of Mississippi

          Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges.


         Robert L. Jenkins appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. The State of Mississippi indicted Jenkins for possessing a substance weighing more than 0.1 gram but less than 2 grams and containing a detectable amount of cocaine. The laboratory analyst who determined the weight and identity of the substance (Alison Smith) was unavailable to testify at trial, so her manager and technical reviewer (Timothy Gross) testified about the test results. Jenkins objected that he had a Sixth Amendment right to confront Smith. The trial court overruled his objection, and Jenkins was convicted by a jury. Pursuant to Mississippi's habitual offender statute, Jenkins was sentenced to life imprisonment without the possibility of parole. After exhausting his state court remedies, Jenkins filed a § 2254 petition, which the district court denied. We affirm.


         I. Arrest and Evidence Seizure

         On January 27, 2007, close to midnight, a state police officer named Michael Brennan observed Jenkins staggering as he walked along a roadway in Biloxi, Mississippi. Officer Brennan stopped Jenkins to check his sobriety and detected a slur in his speech, the odor of alcoholic beverages on his breath, watery and bloodshot eyes, and that his balance was unsteady. When Officer Brennan attempted to take Jenkins into custody for public intoxication, he noticed a white tissue in Jenkins's mouth. Officer Brennan ordered Jenkins to remove the tissue and Jenkins complied, placing it on the hood of the patrol car. At that point, a white, rock-like substance rolled out of the tissue. Jenkins grabbed the rock, threw it in his mouth, and swallowed it. When Officer Brennan checked Jenkins's mouth, it was no longer there. But Officer Brennan discovered two more rocks in the tissue.

         Officer Brennan placed those rocks into an evidence bag. He heat-sealed the bag and wrote the date, his initials, and the case number on it. Later that night, he placed the bag into a vault that is accessible only to narcotics investigators.

         II. Crime Lab Examination

         Approximately three months later, the Mississippi Crime Laboratory (the "Crime Lab") examined the rocks. The Crime Lab Report (the "Report") listed the specific tests performed as: "Chemical Test" and "Gas Chromatography/Mass Spectrometry." The Report concluded that the bag contained "Cocaine, Amount: 0.1 Gram." It was certified and signed by both Alison Smith as "Case Analyst" and Timothy Gross as "Technical Reviewer."

         Smith is also known as a "technician." Her job is to visually examine evidence, weigh it, obtain a sample of it, and then subject that sample to chemical tests.

         Gross is Smith's manager. He oversees the general operations of the Crime Lab and serves as technical and administrative reviewer on some cases. As a technical reviewer, it is Gross's job to review the data in a case file to ensure that it supports the analyst's conclusion on the report. The administrative review assesses the accuracy of basic information like dates and initials and whether proper procedures were followed. Gross was the technical and administrative reviewer in Jenkins's case. In that capacity, he did not observe or participate in Smith's testing of the substance, but he did review the data that Smith placed on her worksheet and the mass spectrometry data in the case file in order to ensure that they supported her conclusions in the Report.[2]

         As mentioned above, Smith performed two tests to determine the substance's identity: a "Chemical Test" and a "Gas Chromatography/Mass Spectrometry." The chemical test was a "cobalt thiocyanate test," which involves placing a small amount of the sample in a test tube with cobalt thiocyanate solution to observe color change. The "Gas Chromatography/Mass Spectrometry" is used to separate different components in a sample.

         After the Report was issued, a Mississippi grand jury indicted Jenkins for possession of a controlled substance and the case proceeded to trial.

         III. Jury Trial

         At the time of trial, Smith was unavailable due to extended medical leave. Accordingly, the State called Gross to testify about the results of the Crime Lab examination. Jenkins objected. Outside the presence of the jury, the trial court heard Gross's testimony and then ruled: "[I]n light of [the] fact that Mr. Gross participated in the analysis of the subject testing in the capacity as technical reviewer[, his testimony] does not violate the defendant's 6th Amendment right, and as ...

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