Brooks v. State, 98-KA-00322-SCT.
| Decision Date | 07 October 1999 |
| Docket Number | No. 98-KA-00322-SCT.,98-KA-00322-SCT. |
| Citation | 748 So.2d 736 |
| Parties | Levon BROOKS a/k/a Lee V. Robinson a/k/a "Tytee" v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Curtis H. Austin, Columbus, Attorney for Appellant.
Office of The Attorney General by Pat S. Flynn, Attorney for Appellee.
BEFORE PITTMAN, P.J., WALLER AND COBB, JJ.
STATEMENT OF THE CASE
¶ 1. On September 15, 1990, three-year-old Courtney Smith was abducted from the bed she shared with her two sisters. She was found murdered two days later. Courtney's five-year-old sister, Ashley, identified Levon Brooks as the person who took Courtney from the bed. Brooks was convicted of the capital murder of Courtney. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections.
¶ 2. In the early morning hours of September 15, 1990, three-year-old Courtney Smith was taken from her bed. Two days later, Courtney was found dead in a pond near her home in Noxubee County.
¶ 3. Levon "Tytee" Brooks, an ex-boyfriend of Courtney's mother, was convicted of Courtney's murder after Ashley Smith, Courtney's five-year-old sister, identified Brooks as the man who took Courtney from their bed. Ashley could see Brooks in the light of the television coming from the next room.
¶ 4. Immediately after Brooks left the house with Courtney, Ashley tried unsuccessfully to awaken the only adult in the house, her Uncle Tony. When the other adults finally arrived home the next morning and found Courtney missing, they began a search. The police were finally called in at 8 p.m., and an official search was begun. Courtney had not been found when the search was called off at 1 a.m. Courtney's body was found later that morning in a pond about 100 yards from her home.
¶ 5. Sgt. Ernest Eichelberger, chief investigator for the Noxubee County Sheriff's Department, testified that Courtney's body showed bleeding from her head and vaginal area. He interviewed Ashley, who told him "Tytee" had taken her sister. Ashley then identified Brooks from a photo lineup.
¶ 6. Dr. Stephen Hayne testified that the autopsy he performed showed drowning to be the cause of death. He testified that bruises found on Courtney's head were probably from a fist. He further testified that he found cuts in her vaginal wall and a torn hymen, injuries that occurred while she was alive.
¶ 7. Dr. Hayne also found bite marks on Courtney's wrist. Dr. Michael West, a forensic odontologist, was called in to examine the bite marks. Dr. West gave extensive testimony regarding the tests he had conducted in reaching the conclusion that the bite marks had been made by Brooks. Brooks' expert, Dr. Harry Mincer, testified that while he could not say with medical certainty that Brooks made the bite marks, neither could he exclude Brooks as the biter.
¶ 8. Brooks was convicted of capital murder. He was sentenced to life in prison.
I. THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR. MICHAEL WEST INTO EVIDENCE.
¶ 9. Brooks asserts that the trial court erred in admitting the testimony of Dr. Michael West, a forensic odontologist, into evidence. Dr. Steven Hayne, who performed an autopsy on Courtney, testified that he found what appeared to be bite marks on Courtney's wrist. He then stated that he contacted Dr. West because he, himself, had no expertise in bite-mark identification.
¶ 10. At trial, the State offered Dr. West as an expert in the subject of forensic odontology. Brooks, after briefly questioning Dr. West, made no objection to Dr. West being designated an expert. Because there was no contemporaneous objection made at trial, this issue is procedurally barred. However, because of the controversial nature of bite-mark evidence, this Court will address the issue on the merits.
¶ 11. This Court has never affirmatively stated that bite-mark evidence is admissible in Mississippi. It has intimated that such expert testimony regarding bite-mark evidence will be allowed:
Because the opinions concerning the methods of comparison employed in a particular case may differ, it is certainly open to defense counsel to attack the qualifications of the expert, the methods and data used to compare the bite marks to persons other than the defendant, and the factual and logical bases of the expert's opinions. Also, where such expert testimony is allowed by the trial court, it should be open to the defendant to present evidence challenging the reliability of bite-mark comparisons. State v. Ortiz, 198 Conn. 220, 502 A.2d 400, 403 (1985). Only then will the jury be able to give the proper weight, if any, to this evidence.
Howard v. State, 701 So.2d 274, 288 (Miss. 1997) (emphasis added). We now take the opportunity to state affirmatively that bite-mark identification evidence is admissible in Mississippi.
¶ 12. Dr. West outlined the procedures he used in determining that Brooks made the bite marks found on Courtney's wrist. He testified that he excised the portion of skin containing the bite marks. He then took the dental casts of twelve people, including Sonja Smith, Courtney's mother, and Brooks. Dr. West then photographed the skin portion and compared the molds he had made to the photographs, effectively eliminating everyone except Brooks as suspects.
¶ 13. As this Court stated in Howard, when bite-mark evidence is allowed, the defense will be allowed "... to attack the qualifications of the expert, the methods and data used to compare the bite marks to persons other than the defendant, and the factual and logical bases of the expert's opinions." Howard, 701 So.2d at 288. If expert testimony regarding bite-mark evidence is allowed by the trial court, the defense should be given the opportunity to present evidence that challenges the reliability of bite-mark comparisons, as was done in the case sub judice. Id.
¶ 14. Brooks accepted Dr. West as an expert in forensic odontology. Brooks further cross-examined Dr. West on the field of odontology. In an attempt to challenge the reliability of bite-mark comparisons, Brooks brought out that there are no established guidelines in evaluating bite-mark evidence. He also brought out that the American Dental Association recognizes the field of forensic odontology but does not view it as a specialty. ¶ 15. Brooks called Dr. Harry Mincer as his expert in forensic odontology. Dr. Mincer testified that he used the same procedures as Dr. West in examining the bite-mark evidence. Dr. Mincer also testified that while he could not say with medical certainty that Brooks made the bite marks found on Courtney, he did find consistencies between the mold of Brooks' teeth and the bite marks on Courtney. Dr. Mincer further testified on cross-examination that he could not exclude Brooks as the biter and that, in his opinion, he could exclude the teeth from the other persons tested as the ones that had inflicted the bite marks in question.
¶ 16. Dr. Mincer noted that Dr. West had taught him how to interpret bite marks and that he used basically the same procedures as Dr. West in evaluating the bite marks. These admissions by Dr. Mincer, including his testimony that he could not specifically exclude Brooks as having made the bite marks, made it difficult to challenge the reliability of the bitemark evidence.
¶ 17. Brooks was given the opportunity to challenge the reliability of the bite-mark evidence as required by Howard. The trial court did not abuse its discretion in admitting Dr. West's testimony. This issue is without merit.
II. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTION FOR A MISTRIAL BASED ON THE FACT THAT THE STATE FAILED TO FURNISH TO THE DEFENDANT ALL OF THE EVIDENCE THE STATE'S EXPERT WITNESS USED IN ARRIVING AT HIS CONCLUSION.
¶ 18. Brooks argues that the trial court erred in not granting a new trial based on the fact that the State failed to furnish the defense expert, Dr. Mincer, with all evidence that the State's expert, Dr. West, used in arriving at his conclusion that Brooks made the bite marks found on Courtney's wrist. Specifically, Brooks alleges that Dr. Mincer did not receive the molds made of Sonja Smith's teeth, the mold made of Brooks' lower teeth, or the black and white photographs that had been made by Dr. West.
¶ 19. Brooks is procedurally barred from bringing the issue of missing photographs before this Court. In his motion for mistrial, Brooks did not assign as error the failure to provide the black and white photographs. He only assigns as error the failure of Dr. West to provide the defense expert with the molds of Sonja Smith and the lower mold of Brooks.
¶ 20. The State correctly contends that Brooks is alleging a discovery violation as a result of Dr. West misplacing the lower mold of Brooks and the molds of Sonja Smith. As this Court has stated in the past, the purpose of discovery is to avoid unfair surprise or trial by ambush. Ghoston v. State, 645 So.2d 936, 939 (Miss. 1994); Rogers v. State, 599 So.2d 930, 937 (Miss.1992); McCaine v. State, 591 So.2d 833, 836 (Miss.1991); Fuselier v. State, 468 So.2d 45, 56 (Miss.1985)....
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Howard v. State
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