BERTHA MAE WILSON A/K/A BERTHA M. WILSON, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
DATE OF JUDGMENT: 01/25/2013.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. LISA P. DODSON. TRIAL COURT DISPOSITION: CONVICTED OF DELIBERATE-DESIGN MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH PRIDGEN, GEORGE T. HOLMES.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, JOHN R. HENRY JR.
ROBERTS, J. IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. LEE, C.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Bertha Mae Wilson was convicted of deliberate design-murder and sentenced to life imprisonment. The sole issue on appeal is whether it was reversible error
under Mississippi Rule of Evidence Rule 404(b) for the State to cross-examine Wilson with prior statements that she made to a non-testifying but available psychological expert.
¶2. Because there was no contemporaneous Rule 404(b) objection at trial, the issue is procedurally barred. We nonetheless consider the issue on the merits and find that the trial court did not abuse its discretion in admitting the evidence. Accordingly, we affirm the conviction.
FACTS AND PROCEDURAL HISTORY
¶3. On the night of August 14, 2011, Wilson stabbed her former fiancé, Marcus Spencer, in the neck with her knife as he lay half-naked in her bed, severing his jugular vein and carotid artery. Spencer fled from the apartment and collapsed outside. As bystanders gathered around Spencer and one of them attempted to help him, Wilson calmly walked up, exclaimed " I did it," and then kicked Spencer in the face, saying: " Bitch, didn't I tell you I was going to kill you," and " I hope you die and burn in hell," and " How he going to be sleeping with me and my daughter?" Spencer died a short time later due to massive blood loss. At the time, Wilson was thirty-nine years old. She weighed about 230 pounds. Spencer was thirty-six years old. He weighed 185 pounds. Wilson and Spencer were approximately the same height.
¶4. The prosecution presented evidence that five days before Wilson killed Spencer, Wilson had called Spencer's sister. Wilson asked Spencer's sister to tell Spencer that Wilson was not mad at him anymore. Wilson also wanted Spencer to know that she did not believe what she had heard, and that he should answer her phone call. Afterward, Wilson and Spencer talked over the phone. Spencer agreed to visit Wilson at her apartment.
¶5. On the night of August 14, Wilson had her children leave the apartment, so they would not be there when Spencer arrived. The prosecution's theory was that Wilson had lured Spencer to her apartment so that she could kill him, because she thought that he had slept with her eighteen-year-old daughter.
¶6. Prior to trial, the defense sought and obtained funds for a mental-health expert. Dr. Beverly Smallwood examined Wilson and produced a twenty-five-page report. Prior to the examination, Dr. Smallwood told Wilson that her statements were not privileged and would be turned over to the State. The defense listed Dr. Smallwood as a potential witness, and as a consequence, was required by the rules of discovery to turn her report over to the State in advance of trial. The defense decided not to call Dr. Smallwood as a witness.
¶7. Dr. Smallwood's report contained several statements Wilson made that were inconsistent with her claimed defense that she killed Spencer during the heat of passion. Wilson testified and was cross-examined using her statements from the report. The report itself was never introduced into evidence nor shown to the jury. Ultimately, Wilson was convicted and sentenced to life imprisonment.
I. Pretrial Rule 404(b) Motion in Limine
¶8. On the morning trial began, the defense argued that Mississippi Rule of Evidence 404(b) prohibited the State from mentioning anything from Dr. Smallwood's report unless Dr. Smallwood testified. The defense was particularly concerned about the fact that Wilson had told Dr. Smallwood that she had previously used a knife to attack two other men in her
home. The victims of her attacks were her ex-husband and a former boyfriend. The State responded that Wilson's statements might be admissible as impeachment if she testified. Depending on how Wilson testified, the State suggested that the statements might be relevant to lack of mistake, modus operandi, or pattern. Without having read Dr. Smallwood's report, which had just been furnished to it, the circuit court held that the report would not be admitted, but " depending on the proof at the time," the matter could be " revisit[ed]."
II. The Defense Theory
¶9. During opening statements, Wilson's attorney said: " That fiery, that rage, that hatred [was] still there. This man had had sex with her [eighteen]-year-old daughter and wanted her to marry him and have sex with her that night. That's not murder. At worst it's manslaughter, at best it's self-defense." Wilson's attorney went on to say that Wilson had been sexually abused by her grandfather, raped in the seventh grade by a man she babysat for, and raped by a group of boys in the eleventh grade, causing her to become pregnant and drop out of school. Wilson's attorney also told the jury that Wilson's twin daughters had been sexually abused by their father in North Carolina. According to Wilson's attorney, Wilson was angry because she believed that her daughter had slept with Spencer. But Wilson's attorney claimed that Wilson did not intend to kill Spencer. Specifically, Wilson's attorney stated that she " never had any specialized training in martial arts. She doesn't know the best place to stab somebody if you want to kill them or any of that sort of thing. Okay. She doesn't know anything about any of that."
¶10. After the prosecution presented its case-in-chief, it argued that Wilson should be prohibited from introducing evidence of her past violent confrontations with other men. Wilson's attorney argued that such evidence was necessary to present Wilson's defense. According to Wilson's attorney, evidence of her previous experiences was necessary to explain the anger and rage that caused her to kill Spencer. Specifically, Wilson's attorney argued:
Your Honor, the proof of manslaughter deals with state of mind of the defendant at the time that the killing took place. The state of mind of the defendant is - can be proven through the testimony regarding a past and the events that occurred up until the time of the killing. It's not irrelevant. It's relevant to her state of mind. It's relevant as to whether this is a manslaughter case or . . . deliberate[-]design murder. I don't know how else you can make a defense of manslaughter without proving some sort of past anger, something that creates this anger and this frustration. Sometimes it happens immediately, sometimes it happens over the course of many years. I can't make a defense if I'm not allowed to put on evidence to show that there was every reason to believe that this woman had reached a point to where she snapped, and that is the basis of heat[-]of[-]passion manslaughter.
¶11. The circuit court agreed to allow Wilson to put on all of the evidence she wanted to about her violent past to explain why she " snapped." However, the circuit court pointed out that Dr. Smallwood's report was not privileged. Referring to the prosecutor, Wilson's attorney said, " Even if she uses it[,] the fact of the matter is that she can refer to it and our defendant, our client, will have to explain those things." The circuit court agreed: " [I]t appears to me that the State certainly can cross-examine her with regard to all of
those incidents as well as any other incidents that they may have information on. . . . They have the report and it is fair game." The circuit court continued:
[T]he defendant can testify to whatever is admissible[,] . . . to those things that formed that defendant's state of mind in the relevant time period. The State can then cross-examine with regard to any items that would cast some doubt on that state of mind and on the credibility of that defendant. . . . [ T ] hat doesn't prohibit [ the State ] or the defense from objecting appropriately as the questions are asked. . . .
III. Wilson's Testimony