Brent v. State

• Decision Date: 17 February 1994
• Docket Number: No. 90-KA-0498,90-KA-0498
• Citation: 632 So.2d 936
• Parties: Leslie BRENT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 936

632 So.2d 936

Leslie BRENT v. STATE of Mississippi.

No. 90-KA-0498.

Supreme Court of Mississippi.

Feb. 17, 1994.

Jeffrey A. Varas, Hazlehurst, for appellant.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

HAWKINS, Chief Justice, for the Court:

Leslie Brent has appealed his conviction in the Circuit Court of Copiah County of felonious child abuse and sentence to ten years imprisonment. Finding no error, we affirm.

FACTS

When Lemerle Gilmore married Brent in December, 1984, she had three children, Cerita, Tenecia and Danny Gilmore. Following her marriage, Cerita and Tenecia lived with Lemerle's mother, Mrs. Eartha Lee Gilmore. Danny lived with Lemerle and his stepfather, Brent. Lemerle and Brent had one child born of their marriage, Leslie Brent, Jr.

In December, 1989, Danny was nine years of age, in the third grade at Crystal Springs School, and a below average student.

At 7:00 a.m. on the morning of December 11, 1989, Lemerle dropped Danny and the baby, Leslie, off at Mrs. Gilmore's on her way to work. When she returned that evening, Danny told her that he had stolen his grandmother's ring. When they got home, Danny was punished by his mother for stealing the ring. The next morning, after Danny arrived at his grandmother's house, he told his sister Cerita that Brent on the previous night had beaten him and then burned him with a spoon. Danny showed her the burn marks and in turn, Cerita told her grandmother, who then treated his burns.

While in school on the morning of December 12, 1989, Danny was summoned from his classroom by Dorothy Stokes, principal of Crystal Springs Elementary School. Danny told Stokes and a social worker that he had been burned with a spoon at home by his stepfather. According to Stokes, the burn resembled "the head part of a spoon" and she could think of no way that Danny could have been burned like that while in school.

Later in the day Danny was taken to the Crystal Springs Police Department by his aunt, Sadie Edwards. Billy Mangold, a licensed social worker employed by the Department of Human Services, was at the station on another matter when Danny was brought in. After interviewing Danny, Mangold took photographs of the physical injuries. ¹ Danny was not taken to a doctor that day because there had been a severe snow storm. After interviewing, examining and photographing him, Mangold was convinced that Danny was an abused and neglected child, and contacted the Youth Court for his removal from the Brent home.

Following Mangold's investigation, on December 12, 1989, Danny was removed from the Brent home, and placed with his aunt Sadie Edwards.

Brent was arrested and charged with felonious child abuse, and on April 4, 1990, was indicted by a grand jury of Copiah County for felonious child abuse in violation of Sec. 97-5-39(2). Trial was held on April 17, 1990.

Trial

During the course of the trial, there was voir dire examination of Danny's ability to accurately testify. After questioning from both sides, the Court determined that Danny was competent to testify. Part of Danny's testimony was that his mother had punished him by beating him "with a big black extension cord." In addition, Danny testified that later that same night, after his mother punished him, Brent beat him with a "hard stick" and then put his mother in the back room of the house. Following this, Danny was told to remove his shirt. Brent then opened a drawer, removed the baby's spoon, heated it over the gas stove, and stuck it on Danny's chest. Danny also testified that his lip was broken open as result of Brent's beating. Danny prepared himself for bed but did not reveal to his mother what had happened.

Q: Would you tell the folks why you didn't tell your Mother.

A: 'Cause she told me don't tell nobody, so I didn't tell nobody but my sister.

Q: Who told you not to tell anybody?

A: My mother.

Q: Who was it you told?

A: My sister.

Q: And what happened when you told her?

A: I was scared 'cause I had told my sister.

Q: Why were you scared because you had told your sister?

A: Mother told me don't tell anybody.

(R. 63-64)

Cerita Gilmore, Eartha Lee Gilmore, and Sadie Edwards were called to testify on behalf of the State. All three stated that on December 12, 1989, Danny revealed the bruises and burn marks to them. Cerita and Sadie also testified that they had previously observed bruises all over the child and that Danny was in such condition "very often."

Lemerle Brent testified that she was the sole provider for her family as she was the only one working during that time. She testified that on the night of December 11, 1989, she punished Danny for stealing the ring by whipping him with a switch. According to Lemerle, her whipping caused Danny's broken lip. Lemerle also testified that she first learned of the burn marks on Danny's chest the evening of December 12 when she arrived to collect her children from Eartha Gilmore's house. Lemerle stated that she was in the bathroom with Danny when he showered that morning but that she only saw marks from the whipping. Finally, Lemerle testified that Brent in no way punished Danny that night and that she did not believe that he burned him. ² She did admit to having a baby spoon in the house for feeding Leslie, Jr.

After Danny was removed from the Brent home, it was two to three weeks later before Lemerle saw her son again. She and Hazle McKinley, Brent's mother, went to see Danny at Sadie Edwards' house. Mrs. Edwards testified that she did not invite the two women to her home and that "they was talking to Danny trying to convince him to talk to Leslie's lawyer by telling him that he didn't burn him." Lemerle Brent testified that the only contact she had with Danny after he was removed from the home was "after they had sent for me, I went by the house one time."

Brent testified on direct examination that at no time during his marriage to Lemerle did he discipline or punish Danny. On cross-examination, however, he admitted to whipping Danny during the early years of the marriage. Brent emphatically denied burning or administering punishment of any kind to Danny on the night of December 11, 1989.

Mangold testified that Danny was a frightened little boy who feared that he might be placed back in the home with Brent; and that it was fairly common for abused and neglected children not to complain to others because of their fears.

Juror Misconduct

Following the testimony of several State witnesses, during the lunch recess defense counsel learned from some source that a juror was discussing the case with his fellow jurors. He brought it to the attention of the court. A hearing was then conducted in chambers. Mangold, the social worker who had investigated the case, first testified that J.D. Lewis, father-in-law of the sheriff of Copiah County, had told him that morning prior to being selected as a juror that if he "was selected as a juror that the state would not win another damn case." Mangold also said he had informed the prosecuting attorneys of this statement. The state had nonetheless accepted Lewis as a juror.

David Bagley, the bailiff for the jury, then testified that when the jury was being taken to lunch, Lewis told him that "we going to raise hell in the jury room when we get up there." Bagley reprimanded him, "J.D., don't say that." Then he heard Lewis talking to the other jurors at lunch, and again reprimanded him. Bagley continued:

Coming on out [from lunch] he said "I got four on my side now." I said, "J.D., that ain't right," I said "sit in there and listen to the evidence and then make up your mind." He said, "I done made up my mind." (Emphasis added).

In response to further questioning by defense counsel as to whether he had heard Lewis say anything else, he replied, "He was talking too low and laughing. You know how he is about laughing."

The district attorney then moved for a mistrial or in the alternative that Lewis be replaced as a juror:

BY MR. SMITH:

Your Honor, the State would move for a mistrial, or in the alternative to strike Juror Lewis and replace him with the alternate. I will state for the record that I was aware that he made a comment this morning, but I know J.D. Lewis and felt like he was doing nothing more than talking, but it appears that he's a man that I know to be a talker and bragger and so forth, and I really didn't take it seriously; apparently, though, he has done more than that. He has actually violated his oath as a juror and has talked to some of the other witnesses, in fact has made the comment that he's got four on his side.

Defense counsel responded:

BY MR. VARAS:

Your Honor, if the State had problems with Mr. Lewis, they should have struck him off the panel. This information was available to them prior to selecting the jury. (Emphasis added).

The circuit judge then noted that because the statement made by Lewis to Mangold was made prior to being selected as juror, and the State, being apprised of this remark, nevertheless accepted him as a juror, the court was not going to declare a mistrial because of this statement. As the record shows, the court was not going to give any relief whatsoever to the State for Lewis's adverse remarks prior to trial. The circuit judge went on to state, however, that "the conversation during the noon hour upsets me considerably."

Defense counsel then stated that if the Court felt improper statements had been made, a mistrial, rather than simply dismissing Lewis as a juror, would be appropriate.

The district attorney responded that he had no idea whether the four Lewis claimed to have with him were for conviction or acquittal.

The court went on to note that Lewis was well known, the father-in-law of the sheriff, a compulsive talker, all of which was known to the State before choosing him. The court concluded that Lewis should be discharged as a juror and the trial continue.

Defense counsel objected, saying...