Mose Lee Sudduth, Jr., for appellant.
Michael C. Moore, Attorney General, Marvin L. White, Jr., Assistant Attorney General and Charlene R. Pierce, Sp. Ass't Attorney General, for appellee.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Nine-month-old Walter Dean Butler was brought to the emergency room of Columbus Hospital by his mother, Sabrina Butler, at 12:13 a.m. on April 12, 1989. The infant was dead on arrival, and attempts at resuscitation were unsuccessful. The baby died as a result of severe internal injuries. Sabrina was questioned about the cause of the injuries to her infant son, gave conflicting statements, and was ultimately placed under arrest later that morning for the capital murder of Walter Dean Butler.
Sabrina was indicted at the May Term, 1989, grand jury of Lowndes County for capital murder in violation of Miss. Code Ann. 97-3-19(2)(f) (Supp. 1991), i.e., the killing of Walter Dean Butler while engaged in the commission of felonious child abuse and/or battery of a child. Trial commenced on March 8, 1990, and
resulted in a guilty verdict and sentence of death by lethal injection. We reverse.
Everyone who viewed the body of Walter Dean Butler in the early morning of April 12, 1989, remarked that his stomach was noticeably distended (swollen). The swelling was caused by severe internal injuries and bleeding. An autopsy revealed several abrasions, bruises and scars, in addition to the distended abdomen and a prolapsed rectum. Some marks, of course, were caused by medical personnel in the effort to resuscitate the child.
Internally, the autopsy revealed two areas of rupture or perforation in the small intestine, as well as bruising and bleeding. There was a substantial amount of" fluid and fecal-like material . . . floating free inside the abdominal cavity "which had entered the cavity through the perforations in the wall of the small intestine. The right adrenal gland, which sits atop the right kidney, was also lacerated.
A microscopic examination showed" acute inflammation involving the serosal [or outer] surfaces of most all of the organs within the abdominal cavity. "This condition is called acute peritonitis, and is the body's response to the presence of foreign substances in the abdominal cavity. It was explained at trial that peritonitis generally does not set in until at least an hour after the internal damage is done.
Expert opinion was offered that Walter Dean Butler's death was" directly related to the perforations in the duodenum and . . . the events that resulted immediately after that, "i.e. the acute peritonitis. As for what caused the internal injuries resulting in death, Dr. Hicks, the pathologist who performed the autopsy, testified that some type of blunt trauma, or" substantial blunt force to the abdomen, "had to be the culprit. This opinion was shared by all other medical personnel who testified. No witness accepted the defense's theory that a clumsy attempt at CPR caused such massive injuries.
Sabrina Bulter was questioned by medical personnel and police several times during the early morning hours of April 12, 1989. She gave conflicting versions of what happened. She initially told medical personnel that a baby-sitter had given the child Benedryl and Tylenol. She stated that Walter Dean had been staying with a baby-sitter by the name of Ester Hollis who lived in the same apartment complex. Upon Sabrina's return, Ester Hollis's son came upstairs to the apartment and told her that Walter Dean had stopped breathing. Sabrina claimed to have gone
downstairs to the Hollis apartment, couldn't get anyone to answer the door for 10-15 minutes, and finally got someone, later identified as Larry Nance, to drive her and the baby to the hospital. Sabrina stated that she attempted cardiopulmonary resuscitation along the way.
A little later, Sabrina told police she left her child with Hollis about 2:00 p.m. on April 11, 1989. Sabrina was expecting company that evening, and about 9:00 p.m. a man named Steve stopped by her apartment. Steve allegedly stayed about thirty minutes, and about 10:00 p.m., Sabrina went jogging. When she returned, Ester Hollis's son came to her apartment with news that Walter Dean had stopped breathing. Sabrina went to Ester's apartment and attempted to resuscitate the child by blowing in its mouth and pushing on its stomach. She then went door to door for help. A neighbor by the name of Brenda Jackson couldn't help, a girl named Lisa Flowers tried to help, and a man named Larry Nance, who lived in Apartment 2, drove them to the hospital.
Later still, Sabrina gave largely the same story to another officer, except to say that she had gone jogging first, that Steve stopped by around 10:30 p.m., and Ester Hollis's son came to her apartment regarding Walter Dean about 11:00 p.m.
Officers then proceeded to the apartment complex where Sabrina lived to interview any potential witnesses, and to locate Ester Hollis. After a thorough check of other apartments, no person by the name of Ester Hollis was found. In fact, nobody they spoke to ever had heard of Ester Hollis.
Sabrina was interviewed later at the morgue. She was told that Ester Hollis could not be located. Sabrina recanted parts of her earlier story, claiming she had lied previously out of fear, and stating that everything was better now because she was going to be with Walter Dean.
Sabrina then gave an amended version of her story which goes as follows: The baby was with her all day. At about 10:00 p.m., April 11, 1989, she put the baby in a stroller, and, with baby in tow, she went jogging. Sabrina returned to her apartment about 10:20 p.m., and a man named Steve arrived there about 10:30 p.m. Steve did not stay long, and Sabrina put Walter Dean to bed. She checked the baby about 11:00 p.m., and he appeared normal. She checked him again at 11:30 p.m. and discovered he wasn't breathing. She sought help from her neighbors. Larry Nance agreed to take them to the hospital, and en route Sabrina attempted to resuscitate the child with methods resembling CPR.
Sabrina accepted a request to submit to questioning at police headquarters, and arrived there around 3:00 a.m.,
April 12. There, she gave yet another statement, and once again, her story changed somewhat, this time admitting that she had lied about the baby-sitter, and about receiving a visit from a man named Steve. The statement, as transcribed and summarized by one of the interviewing officers, reads as follows:
Walter was playing with his toys in the living room before 10 p.m. and I fed him some milk. I washed him off around 10 p.m. and put him to bed. I took a shower and eat then I put on my jogging pants and got Walter up and wrapped him up. I put him in his stroller and went outside to jog. I went up 27th St. N. to the street that goes to 26th St. N. then down 26th St. N. for less than a block. I then jogged back home pushing Walter in the stroller. I then went back inside and put Walter to bed and went into my room and laid on the floor because of my back. I got up at about 11:30 p.m. to use the bathroom and check on Walter. When I went into his room he was lying on his stomach and I moved the cover and put his bottle in his mouth and I saw he wasn't breathing. I started pressing on his stomach and blowing in his mouth trying to get him to breathe. I ran out of my apartment to Brenda Jackson's apartment and asked her to take me to the hospital but she said her kids were in the bed and that she couldn't take me. I knocked at another apartment door but no one answered. A girl (Lisa Flowers) came out of her apartment and I told her that my baby wasn't breathing. She grabbed him and took him into Erica's apartment and laid him on the floor. [S]he was pushing on his chest and blowing in his mouth. She got some people (Larry Nance) to take us to the hospital. We went to C.H.I. where Doctor Woodard in the emergency room saw Walter. I talked to a nurse and she had me fill out some papers. Dr. Adams came out and told me that there wasn't anything else they could do. Walter fell out of his stroller sometime around the first of last week and fell over onto the carpet causing some abrasions on his face. Other than this he has received no other injuries that I am aware of.
At 7:00 a.m. that same morning, Detective Edward Williams of the Columbus Police Department attended a briefing, and was informed of the incident involving Sabrina and Walter Dean Butler. He was directed to go with Lt. Donald Freshour to Sabrina's apartment, and to interview potential witnesses. They got no answer at Sabrina's, were unable to locate anybody named Ester Hollis, and left a message with neighbors that they needed to talk with Sabrina. Later that morning, Sabrina voluntarily came to the police department.
Williams, Lt. Freshour, and Sabrina went into Williams's office. They explained to Sabrina why they wanted to question
her. Her rights were read and explained to her, and she executed a written waiver. She gave a statement which was reduced to writing and approved by her. Once again, her story varied.
In this latest statement, Sabrina stated that she put Walter Dean to bed around 10:00 p.m. on the night of April 11, 1989. After making sure he was asleep, Sabrina left her apartment and went jogging for about 10 minutes. Upon her return to the apartment, the baby was awake and crying. Finding a wet diaper, Sabrina began changing it, and noticed in the process that Walter Dean's rectum was protruded. She used a finger to" push [his rectum] up inside him. "When the baby would not quit crying, Sabrina took her fist and hit the baby once in the abdomen. She then took him into the kitchen and gave him a Tylenol/milk solution to drink. *fn1 She said he took one swallow and quit breathing. She sought help from her neighbors, and got Larry Nance to drive them to Columbus Hospital. The baby was dead.
After giving this statement, Sabrina was arrested and charged with capital murder. She was ultimately convicted and sentenced to death. None of the facts as related by the State's witnesses were seriously contested by Butler, and she rested at trial without offering any witnesses or other evidence. She attempted through cross-examination of the prosecution's witnesses to establish reasonable doubt whether the injuries to Walter Dean Butler could have been caused by an attempt to perform CPR. She also seriously contested the admissibility of her statements, to no avail.
I. SUFFICIENCY AND WEIGHT OF THE EVIDENCE
We find no merit to any of the assignments attacking the sufficiency and weight of the evidence to convict.
II. COMMENT ON BUTLER'S FAILURE TO TESTIFY
When an accused exercises his or her constitutional right not to testify, the circuit judge must see that the State makes no direct or indirect comment on this fact. See e.g. Ladner v. State, 584 So.2d 743, 754 (Miss. 1991), cert. denied ___ U.S. ___, 112 S. Ct. 663, 116 L.Ed.2d 754 (1991); Livingston v. State, 525 So.2d 1300, 1305-08 (Miss. 1988). Though painful, the responsibility and duty of a circuit judge when such a comment is made is to declare a mistrial on the spot. Such celerity on the circuit ...