BEFORE DAN LEE, SULLIVAN AND ANDERSON
ANDERSON, JUSTICE, FOR THE COURT:
On October 17, 1985, a Harrison County jury found the defendant/appellant, James Robert Steele, guilty of capital murder in the death of Christina Renee Sinclair, a twenty-three month old child. See, Sections 97-3-19 (2)(f) and 97-5-39 (2), Mississippi Code Annotated (Supp. 1988). The next day, after a separate hearing, the jury sentenced Steele to life imprisonment. Steele's Motion for New Trial or J.N.O.V. was overruled on October 31, 1986. In reversing and discharging the defendant, we address two of Steele's seven assignments of error.
Steele joined the Navy in December 1981, and arrived at the Construction Battalion Center (Seabee Base) in Gulfport on May 7, 1983. Sometime in May or June 1984, he and Kathy Sinclair (Sinclair) met at a church softball game and began dating. Sinclair had a young daughter named Christina Renee Sinclair (Christina).
Because Sinclair was in the process of a divorce, she and Christina lived with her parents, Mary and Charles Red, in Long Beach, Ms. For approximately one month before Christina's injury, Christina spent her days at a day care center, while her mother went to work in the parts department of a car dealership in Gulfport. As Steele's and Sinclair's relationship developed, Steele would sometimes pick Christina up from day care and take her to the beach, where Sinclair would join them when she got off work around 5:30 or 6 p.m. In addition, Steele stated he had stayed with or babysat Christina ten or fifteen times over the course of his four-month relationship with Sinclair. Usually, he babysat when the Reds and Sinclair were going to church or choir practice.
On October 10, 1984, Sinclair picked up Christina at day care around 5:15 p.m. Sinclair fed and bathed Christina but did not wash Christina's hair. By arrangement, Steele arrived at the Red's home around 6:30 p.m. Sinclair was going to join her parents at choir practice, so Steele offered to babysit. When Sinclair left, shortly before 8 p.m., Christina was already dressed for bed. She was sitting on the floor of the den, playing with a new tea set. Steele was going to watch the World Series. The following is Steele's account, which account Steele first gave on the night of the incident, and continued to give throughout the investigation and proceedings.
Christina, who was being toilet-trained let Steele know she had to go to the bathroom. Steele took her to the bathroom, removed her disposable diaper, seated her on her trainer seat and returned to the ballgame. Christina came back to the den a few minutes later and Steele went to find her diapers. They were damp and he could not find anymore, so he put a pair of her panties on her. Christina then said," rock "and Steele rocked her while watching the game. After she fell asleep, Steele put her in her bed under the covers.
Fifteen or twenty minutes later, Christina came back to the den and wanted to be rocked again. Steele, intent on the game, did not notice when she fell asleep, but put
her back in bed sometime later. Three to six minutes later, he thought he heard her whine. He went to check and she was lying on the floor, more of less parallel to the bed, with her head facing the head of the bed, and with her eyes wide open. Steele picked her up and as he put her back in bed, told her to go to sleep. He thought he placed her on her stomach and on top of the covers this second time. Two to five minutes later he thought he heard her again. This time, the noise was unusual and he could not describe it.
He found Christina in bed. However, she was on her back, with her eyes rolled up in her head and she was gagging. Steele put his finger in her mouth to see if she had swallowed her tongue or if she had something lodged in her throat. Finding nothing, he" became really scared "and did not know what to do. He picked her up and rushed out the front door. When he picked her up, she appeared to pass out. He noticed that if he kept her moving or shook her," she would stay half-way revived ". Steele ran to a neighbor's house and let himself in their front door. The man of the house took Christina and the woman called an ambulance. Steele stated he told the man he had to keep her moving or she would stop breathing.
Christina's mother returned from choir practice just after the ambulance arrived. Steele gave Christina to a medic and went inside the Red's home to get Sinclair. He told her Christina had fallen out of bed and was hurt. As they were going back outside the Reds arrived and everyone went to the hospital. Steele's statement was introduced by the state as part of its case-in-chief. At all times, Steele's only explanation for Christina's injury was that she must have fallen out of bed.
X-rays and a CAT scan were performed immediately. The x-rays showed massive fracturing on the right side of the skull. The CAT scan showed the fracturing on the right side of the skull and swelling of the right hemisphere of the brain which was pushing the right hemisphere over into the space occupied by the left hemisphere. Christina was placed in an intensive care unit. Her vital signs were monitored and a pediatric nurse was with her at all times until October 13, 1984, at which time adult intensive care nurses took over, until her death on October 23, 1984.
Kim Hammond, who had graduated from nursing school three and one-half years prior to trial and had been a registered nurse in pediatrics for three years at the time of trial, testified for the state. She testified that on
the evening of October 12, 1984, two nights after Christina entered the hospital, she noticed several uniform lines on Christina's ears and a grid-like patterned burn on Christina's left buttock. Both areas of burns, the ears and buttock, were scabbing. The scabs on the ears were dry and could be flaked off with a fingernail. The burn on the left buttock was deeper and the scab would have bled if picked. At trial, Hammond gave her expert opinion that the burns were two to four days old on October 12, 1984. The burns, then, could have been inflicted as early as October 8, 1984, or as late as October 10, 1984.
Kathy Sinclair was in the room and Hammond asked her if she had noticed the marks. Sinclair said she had not seen the marks before and, particularly, had not seen them when she bathed Christina on October 10. Charles Red testified that a nurse showed him the burns and told him that one of the treating physicians, Dr. Reeves, felt that the burns were caused by a hair dryer or a floor furnace. There is no floor furnace in the Red's house.
Both Charles and Mary Red testified that they had seen no marks until they were pointed out at the hospital. Mary Red testified that she and Christina had bathed together on the evening of October 9, 1984, and that she had not noticed anything unusual. Mary Red also stated that she washed and dried Christina's hair that night. The hair dryer worked fine. On cross-examination, Mary stated that on October 9, 1984, the hair dryer would run, but it would hang up" . Both the Reds and Sinclair stated that they had not accidentally or otherwise burned Christina.
Steele testified that he had never bathed or dressed Christina and on October 10, 1984, she was already bathed and dressed for bed when he arrived. He had, however, dried her hair a couple of times, but he stated the last time was two or three months prior to October 10, 1984. Steele stated that he had not seen any marks on Christina and had not burned her or injured her in any way. On cross examination, he stated that he had not and would not have seen the burns on her ears because she had long hair, and that he had not and would not have seen the burns on her buttock when he changed her panties because she was facing him. Steele also testified that he had not burned Christina.
Upon learning the doctor's theory of the cause of the burns, Charles Red went home and conducted experiments with the hair dryers he found in his bathroom and the bathroom that Mary Red and Kathy and Christina used. He testified
that he did not mention his experiments to anyone until after Christina was declared legally dead on October 23, 1984. Unfortunately, Red did not conduct his experiment on the hair dryer that had caused the burns because Kathy Sinclair had taken the dryer from the bathroom and put it in a brown paper trashbag in her bedroom.
Sinclair testified that on October 11, 1984, she left the hospital and went home to shower and freshen up. The hair dryer was broken; it would run, but it would not blow hot air. When she returned to the hospital she told her mother about it and her mother told her to use an extra dryer that was in the cabinet in Mr. Red's bathroom. A few days later, she put the hair dryer in the trashbag in her bedroom. Sinclair also stated her father did not tell her about his experiments until after October 23, 1984.
Apparently, on October 25, 1984, Charles Red and one of his sons went to their lawyers to discuss the case. The hair dryer experiments were discussed. When they returned home, Mary Red, Kathy Sinclair and Charles Red were in the living room discussing the case and the hair dryer experiments were again mentioned. Kathy kept trying to interrupt her father and finally told him he had tested the wrong dryer. Later ...