Before Bridges, C.j., Hinkebein, King, And Payne, JJ.
The opinion of the court was delivered by: King, J, For The Court:
DATE OF JUDGMENT: 09/04/96
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: GREENE COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: DALE HARKEY
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CAPITAL MURDER: SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MDOC, SAID SENTENCE TO BE SERVED WITHOUT BENEFIT OF PAROLE GOOD-TIME, EARNED-TIME OR OTHER ADMINISTRATIVE REDUCTION OF SENTENCE, AND PAY ALL COSTS;
¶1. Anthony William Miller was convicted of capital murder in the Greene County Circuit Court and sentenced to serve a term of life imprisonment, without the benefit of parole, good-time, earned-time or other administrative reduction of sentence, in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Miller has appealed and assigned seven points of error. This Court quotes these alleged errors verbatim:
(1) "In failing to sustain the Appellant's Motion for a Mistrial during the testimony ofBelinda Graham, as an unqualified expert, and after a sustained objection to saidtestimony, the trial court committed reversible error.
(2) The trial court erred in failing to quash the indictment on the unconstitutionalissue of no specific intent in the statute charging the appellant.
(3) Section 97-5-39, Miss. Code of 1972 (amended) is unconstitutional, and violativeof the Appellant's Fifth, Eighth and Fourteenth Amendment rights for vagueness, andas it contains no provision for a lesser included offense.
(4) The trial court erred in granting, over objection, State Jury Instructions S-1and S-9, said instructions being incorrect statements of the law.
(5) The trial court erred in refusing the Appellant's proffered Jury Instructions D-1and D-6, effectively denying the Appellant two critical theories to his defense.
(6) The verdict of the jury is against the overwhelming weight of the credibleevidence in this case and is contrary to law.
(7) The culmination of error in this trial requires reversal."
Finding only harmless error, we affirm the circuit court judgment.
¶2. On August 4, 1995, Gwendolyn Bradley left her fourteen month old son, Chase, with Miller at his trailer home in Neely, Mississippi. Miller, who was Ms. Bradley's boyfriend, had agreed to care for Chase while she ran errands in town.
¶3. According to Miller, as Ms. Bradley departed the trailer, he walked into the living room to give Chase some liquid Tylenol. He heard Ms. Bradley yell to him as she walked out the side door, but did not understand her. Miller testified that he left Chase in the living room and walked to the side door to find out what Ms. Bradley said, but she had already departed in the car.
¶4. Miller said that he walked back into the living room, but did not see Chase. He checked throughout the trailer, but Chase was not present. Miller stated that he finally found Chase sitting in front of the trailer steps crying.
¶5. After picking Chase up and walking into the trailer, Miller noticed that a small amount of blood had drooled from the corner of Chase's mouth. According to Miller, as he wiped the blood away with a washcloth, Chase began to have a seizure. Miller quickly picked him up and took him to his mother's trailer next door. Miller and his mother decided to drive Chase to the Greene County Ambulance Service in Leakesville, Mississippi. While riding there, Miller explained that he thought Ms. Bradley may have hit Chase accidentally with her car.
¶6. Upon Chase's arrival in Leakesville, medical personnel determined that he was in need of greater medical attention. Because the ambulance unit in Greene County was not fully equipped with advanced cardiac life support equipment, Charlotte Parnell, the supervising nurse at the George County Hospital emergency room, traveled in its appropriately equipped ambulance to meet the Greene County ambulance. Both ambulances met just across the county line.
¶7. Ms. Parnell examined Chase in the George County ambulance. She found his eyes fixed and dilated. He had ceased breathing and was very cold and dry. Ms. Parnell observed that Chase had no abrasions or cuts, and his body and hair were clean. After arriving at the George County Hospital, Ms. Parnell noticed swelling above Chase's left ear.
¶8. Dr. John Vanderwood, an emergency room physician at the George County Hospital, examined Chase. He took x-rays of Chase's head and chest. The x-rays of the head revealed a large break in the skull. He found swelling on the left side, toward the back of Chase's head, but no other injuries. The chest x-ray did not reveal any abnormalities.
¶9. Dr. Vanderwood transferred Chase to a better equipped hospital in Mobile, Alabama. Chase died en route to this hospital. Dr. Vanderwood subsequently called the Department of Human Services in George County and the Greene County Sheriff's Department to report what he considered to be potential child abuse.
¶10. On August 5, 1995, Dr. Gregory Wanger, a forensic pathologist, performed an autopsy on Chase. He found the following injuries:
(a) a contusion at the base of the upper part of the left ear,
(b) a contusion behind the left ear,
(c) a contusion on the right cheek,
(d) a torn and bruised frenulum, the web of tissue between the gum and the lip,
(e) a bruised area high up on the back of the head to the right,
(f) a bruised area near the center portion of the head,
(g) contusions underneath the chin.
¶11. It was Dr. Wanger's opinion that Chase died from blunt force injuries to the head, inflicted while Chase was stationary. Because Chase's fractures lacerated the brain, Dr. Wanger thought that Chase would not have had the capability to sit and cry, as alleged by Miller, after sustaining such injuries.
¶12. Dr. Wanger measured the distance from Chase's heel to the injuries on his head. From the heel to the large bruise to the back of the head, 25 1/2 inches were measured. From the heel to the bruise at the top of the head, 28 1/4 inches were measured. These measurements, when compared to the height of the front and back car bumpers of Ms. Bradley's car, indicated that the injuries were inconsistent with an automobile injury. *fn1
¶13. Dr. Stephen Haynes, a pathologist at the Rankin Medical Center and the Mississippi Department of Public Safety, reviewed Dr. Wanger's autopsy report, the post-mortem examination report, photographs taken of Chase and the trailer home, medical reports prepared by the emergency medical technicians, a statement by Kevin Fortenberry, an investigator for the Mississippi Highway Patrol Criminal Investigation Division, and a statement from Miller taken at the police station. After analyzing this evidence, it was Dr. Haynes's opinion that Chase's cause of death was blunt force trauma and his injuries were inconsistent with having been hit by an automobile.
¶14. Miller was arrested and indicted for capital murder. On August 24, 1996, a jury convicted Miller of this charge. His motion for new trial having been denied, Miller now appeals his conviction and sentence.
I. IN FAILING TO SUSTAIN THE APPELLANT'S MOTION FOR A MISTRIAL DURING THE TESTIMONY OF BELINDA GRAHAM, AS AN UNQUALIFIEDEXPERT, AND AFTER A SUSTAINED OBJECTION TO SAID TESTIMONY, THETRIAL COURT COMMITTED REVERSIBLE ERROR.
¶15. In his first assignment of error, Miller contends that Belinda Graham, an emergency medical technician employed by the Greene County Ambulance Service, improperly testified as an expert witness. He argues that Ms. Graham was not properly qualified and tendered as an expert, and therefore her testimony regarding the cause ...