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Thomas v. State

Supreme Court of Mississippi, En Banc

June 14, 2018

DAVID THOMAS a/k/a DAVID LEE THOMAS
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 06/06/2016

          HINDS COUNTY CIRCUIT COURT HON. JEFF WEILL, SR. TRIAL JUDGE

          TRIAL COURT ATTORNEYS: BRAD McCULLOUCH GRETA HARRIS CHRISTOPHER ROUTH ERIC BROWN

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES MICHELE PURVIS HARRIS DAVID THOMAS (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          CHAMBERLIN, JUSTICE

         ¶1. David Thomas admitted in oral and written statements to police that he and Jontez Garvis had attacked Fred Jackson and stolen cash from him. After being hospitalized for forty-one days due to the injuries inflicted by the two men, Jackson died. Thomas was indicted for and convicted of capital murder. The trial court sentenced Thomas to life in prison without parole. After review, we affirm Thomas's conviction and sentence.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On January 29, 2012, Sean Snow, a deputy sheriff, responded to Tri-State Recycling, also known as The Can Man, located at 416 Woodrow Wilson Drive in the City of Jackson, First Judicial District of Hinds County, Mississippi, pursuant to a 911 call. The 911 caller reported that a man was lying unresponsive behind The Can Man. Deputy Snow found the man, who later was identified as Fred Jackson, lying on his back. According to Deputy Snow, Jackson's "[f]ace was kind of bluish gray, " his face was bruised, and he had "dried up blood on the right-hand side of his head." Deputy Snow called American Medical Response ("AMR") and the fire department to the scene and they transported Jackson to University of Mississippi Medical Center ("UMMC"). Deputy Snow accompanied Jackson to UMMC where a physician informed him that Jackson had a "fifty/fifty chance."

         ¶3. Deputy Snow obtained and reviewed surveillance videotape footage from The Can Man. He testified that, on the surveillance videotape footage, he had observed two men entering The Can Man, moving to the rear of the property, and proceeding behind a parked truck. The two men "appeared to be striking Mr. Jackson" and continued doing so "somewhere around fourty [sic], forty-one, seconds."

         ¶4. Officer Felix Hodge of the Robbery Homicide Division of the Jackson Police Department received a tip that David Thomas was in a room at the Studio 6 Motel on Interstate-55 North. The record is silent as to how Thomas had become a suspect. According to Officer Hodge, the room was registered to a Tera Johnson and when an attempt was made to contact the occupant of the room, Thomas initially said his name was Jerrell Davis. After Thomas was taken into custody, Officer Hodge recited Miranda[1] warnings and obtained Thomas's written waiver.

         ¶5. Officer Hodge then interviewed Thomas. A video recording of the interview was played for the jury at Thomas's trial. Thomas said during the interview that he had gone to The Can Man to "get a battery to get cash" in order to finance a visit to Nightlife, a nightclub at which a rapper by the name of Future was to perform a show. In the jury's presence, Officer Hodge read the statement Thomas gave:

Jontez [Garvis] came to my house that morning and got me. He asked me was I ready to go get those batteries? He said that he needed money for child support and pampers for his baby. We went through the pathway in the place. We were looking around but didn't find the batteries. I heard a noise, like, a welding machine or a generator. I asked [Garvis] did he hear that? And he said: No. I saw the truck. And I said: Man, there is somebody out here. He said: So, we can get him. We went up to the man and attacked him. I hit him once. [Garvis] hit him two or three times. We weren't planning on it to happen to him like that. I was scared from that morning on. [Garvis] called somebody to come pick us up. We went to the house. And I thought about it. We prayed that [Jackson] would make it through, and everything would be okay.

         Thomas also indicated in his written statement and in the interview that he and Garvis had taken $250 from Jackson and that they had hit him with the rod with which he had been welding.

         ¶6. After forty-one days at UMMC, Jackson died on March 9, 2012. On May 9, 2012, Thomas and Garvis were indicted jointly for capital murder. The State did not seek the death penalty and requested that the cases "be severed for purposes of jury trial." The Circuit Court of the First Judicial District of Hinds County granted the motion to sever Thomas's and Garvis's jury trials.

         ¶7. Dr. Erin Barnhart, who in 2012 was a deputy medical examiner with the Mississippi Medical Examiner's Office, testified that she performed the autopsy on Jackson on March 10, 2012. Dr. Barnhart testified that Jackson's head had suffered multiple fractures: "fractures of the calvarium, or top of the head; fractures at the base of the skull which is the inner aspect of the cranial cavity; and multiple fractures of his face." She continued: "[H]e had [] partially healed cerebral contusions or bruising of the brain" and "a subdural hematoma[, ] which means blood within the cranial cavity between the brain and the surface of the skull." Dr. Barnhart testified, to a reasonable degree of scientific certainty, that the cause of Jackson's death was complications of blunt head trauma, and the manner of his death was homicide.

         ¶8. On cross-examination, Dr. Barnhart was asked about a notation in the autopsy report of "probable aspiration pneumonia." According to Dr. Barnhart, aspiration pneumonia "is generally caused when someone cannot protect their airway, " meaning "that they have an altered level of consciousness and therefore may aspirate or breath in mucus, and hence bacteria that are in their mouth, " therefore, "a pneumonia may develop." Dr. Barnhart testified that Jackson was to be discharged to a nursing home. She stated that the aspiration pneumonia may have contributed to Jackson's death, but that aspiration pneumonia could be ruled out as a cause of death.

         ¶9. The trial court denied Thomas's motion for a directed verdict. After consultation with the trial court and defense counsel about his right to testify in his defense, Thomas decided not to do so. The defense intended to call two witnesses, Dr. Steven Hayne and Jontez Garvis, for Thomas's case-in-chief.

         ¶10. Pretrial, the State had moved in limine to exclude the testimony of Dr. Hayne. After a Daubert[2] hearing, the trial court granted the State's motion and excluded Dr. Hayne's testimony. The defense moved for reconsideration ore tenus before its case-in-chief, and the trial court denied the motion. The defense then called Jontez Garvis to testify.

         ¶11. After the close of testimony and closing arguments, the jury retired to deliberate. It found Thomas guilty of capital murder. The trial court sentenced Thomas to life imprisonment without the possibility of parole. The trial court denied Thomas's motion for judgment notwithstanding the verdict.

         ¶12. Thomas now appeals. His counsel raises two issues. First, he argues that the State failed to adduce sufficient evidence to support the jury's verdict. Second, he argues that the trial court erred by excluding Thomas's proposed expert defense witness, Dr. Hayne. Thomas also has filed a supplemental brief, pro se, in which he raises the following issues:

1. Whether the trial court erred by finding Thomas competent to stand trial.
2. Whether the trial court erred by denying Thomas's motion to recuse the trial judge.
3. Whether the trial court misapplied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
4. Whether the trial court erred by excluding Thomas's proposed expert defense witness, Dr. Steven Hayne.
5. Whether the trial court erred by denying jury instructions requested by Thomas's counsel.
6. Whether the trial court erred when it refused to instruct the jury on the elements of armed robbery.
7. Whether cumulative error requires reversal.

         ¶13. We address each issue in turn. For clarity, we will address Thomas's pro-se claim concerning Dr. Hayne together with his counsel's claim. We also will combine our discussion of the errors that Thomas claims concerning the jury instructions. Additional facts and procedural history will be discussed as necessary for each issue.

         ANALYSIS

         I. Whether the State adduced sufficient evidence to support the jury's verdict.

         ¶14. Thomas's counsel first argues that "[t]he expert testimony from Dr. Barnhart shows that the State failed to prove beyond a reasonable doubt that any damage inflicted by the Defendant was the legal cause of death." Dr. Barnhart testified, to a reasonable degree of scientific certainty, that the cause of Jackson's death was complications of blunt head trauma, and the manner of his death was homicide. Dr. Barhnart testified that aspiration pneumonia "certainly may been contributory, " but that aspiration pneumonia could be ruled out as a cause of Jackson's death.

         ¶15. This Court, in Shelton v. State, 214 So.3d 250, 256 (Miss. 2017), detailed our familiar standard of review for a challenge to the sufficiency of the evidence:

This Court reviews a challenge to the sufficiency of the evidence under the standard detailed in Bush v. State, 895 So.2d 836, 843 (Miss. 2005) [abrogated on other grounds by Little v. State, 233 So.3d 288, 292 (Miss. 2017)]. We recognize that "the critical inquiry" under the standard is whether the evidence supports a finding that the accused "committed the act charged . . . under such circumstances that every element of the offense existed." Id. "'[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). Further:
if a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, " the evidence will be deemed to have been sufficient.
Id.; see also Roby v. State, 183 So.3d 857, 869 (Miss. 2016).

Shelton, 214 So.3d at 256.

         ¶16. "The killing of a human being without the authority of law by any means or in any manner shall be capital murder . . . [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of . . . robbery . . . ." Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014). Thomas admitted to police that he had gone to The Can Man location with Garvis and he admitted that he had attacked Jackson: "I hit him once. Jontez hit him two or three times." Thomas also confessed that he and Garvis had taken $250 from Jackson.

         ¶17. The defense took the position at trial that Thomas was at The Can Man and had participated in the robbery, but that the cause of Jackson's death was not the injuries sustained during the robbery, but rather aspiration pneumonia which was contracted during Jackson's hospital stay. On appeal, the defense maintains its argument that the testimony of Dr. Barnhart was insufficient to support the capital-murder conviction.

         ¶18. This Court considered a case in which the victim had been shot six times and died in the hospital "several days after his admission for treatment of his gunshot wounds. . . ." Holliday v. State, 418 So.2d 69, 70-71 (Miss. 1982). The decedent's treating surgeon testified that "the cause of death was overwhelming infection secondary to his injuries." Id. at 71. Next, the surgeon agreed that the "cause of death was gunshot wounds." Id. In its analysis, the Holliday Court recognized:

The unlawful act or omission of accused need not be the sole cause of death. The test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed. Moreover, responsibility also attaches where the injury materially accelerates the death, although the death is proximately occasioned by a preexisting cause.

Id. (quoting Schroer v. State, 250 Miss. 84, 91, 160 So.2d 681 (1964)) (citation omitted). This Court held that "the jury was justified in determining the gunshot wounds were a substantial contributing cause of death." Id.

         ¶19. Here, the jury was justified in its finding, based on the testimony of Dr. Barnhart, that the cause of Jackson's death was complications of blunt-force trauma, irrespective of the fact that aspiration pneumonia was a possible contributing cause of death. This issue is without merit.

         II. Whether the trial court erred by excluding Thomas's proposed expert defense witness, Dr. Steven Hayne.

         ¶20. Thomas's counsel contends that the trial court's exclusion of Dr. Steven Hayne's proposed testimony deprived Thomas of presenting his sole theory of defense. In his pro-se brief, Thomas agrees, claiming that he was denied his fundamental right to present a meaningful defense.

         ¶21. This Court applies an abuse-of-discretion standard to the trial court's admission or exclusion of expert testimony. Gillett v. State, 56 So.3d 469, 494 (Miss. 2010 (citing Miss. Transp. Comm'n v. McLemore, 863 So.2d 31 (Miss. 2003)). Mississippi Rule of Evidence 702 provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

M.R.E. 702. This Court has held that:

"[T]he opinion of an expert witness must be stated with reasonable certainty, given the state of knowledge in the field in which the expert is qualified." West v. State, 553 So.2d 8, 20 (Miss. 1989) (citations omitted). In other words, these opinions "must rise above mere speculation." Williams v. State, 35 So.3d 480, 486 (Miss. 2010) (quoting Goforth v. City of Ridgeland, 603 So.2d 323, 329 (Miss. 1992)). "[I]ndefinite" expert opinions, or those "expressed in terms of mere possibilities, " are not admissible. West, 553 So.2d at 20 (citing Scott County Co-op v. Brown, 187 So.2d 321, 325-26 (Miss. 1966); Gen. Benevolent Assoc. v. Fowler, 210 Miss. 578, 589, 50 So.2d 137, 142 (1951)). For example, we have held that an expert's offering a ...

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