Clark v. State

• Decision Date: 04 February 2021
• Docket Number: NO. 2017-CT-00411-SCT,2017-CT-00411-SCT
• Parties: Joshua Eric Hawk CLARK a/k/a Joshua Clark v. STATE of Mississippi
• Court: Mississippi Supreme Court

315 So.3d 987

Joshua Eric Hawk CLARK a/k/a Joshua Clark

v.STATE of Mississippi

NO. 2017-CT-00411-SCT

Supreme Court of Mississippi.

February 4, 2021

ATTORNEYS FOR APPELLANT: JIM WAIDE, DAN W. WEBB, Tupelo, DANIEL M. WAIDE, Starkville

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

EN BANC.

ON WRIT OF CERTIORARI

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. Following the death of his four-month-old daughter, Kyllie Clark, and his subsequent indictment for murder under Mississippi Code Section 97-3-19(2)(f) (Rev. 2014), Joshua Clark was convicted of depraved-heart murder under Mississippi Code Section 97-3-19(1)(b). The prosecution relied heavily on the testimony of Dr. Karen Lakin, a pediatrician who opined that Kyllie's death resulted from Shaken Baby Syndrome (SBS), now referred to as Abusive Head Trauma

(AHT). The Court of Appeals reversed and remanded Clark's conviction after finding that crucial parts of Dr. Lakin's testimony were unreliable and therefore inadmissible. Clark v. State , No. 2017-KA-00411-COA, 2019 WL 5566234 (Miss. Ct. App. Oct. 29, 2019). This Court granted certiorari on issues raised both by Clark and by the State.

¶2. We disagree with the conclusion of the Court of Appeals that Dr. Lakin's opinion testimony was inadequately supported to meet the reliability prong of the Daubert standard and was thus improperly admitted. See Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993). We hold instead that the circuit court did not err by admitting Dr. Lakin's testimony. Therefore, the judgment of the Court of Appeals is reversed, and the judgment of the Itawamba County Circuit Court is reinstated and affirmed.

¶3. Further, we find that Clark's six additional assignments of error not previously addressed by the Court of Appeals are without merit. First, we hold that sufficient evidence existed to establish Clark's guilt beyond a reasonable doubt. Second, we hold that Mississippi Code Sections 97-3-19(2)(f) and 97-5-39(2)(c)(iii) (Rev. 2014) are not unconstitutionally vague. Third, we find that the circuit court did not abuse its discretion by instructing the jury on depraved-heart murder. Fourth, we find that the circuit court did not violate Clark's Sixth and Fourteenth Amendment rights to a fair cross-section of the community by refusing to separate the trials into a guilt phase and a penalty phase so that jurors opposed to the death penalty could sit at the guilt phase. Fifth, we find that the trial court did not err by (a) permitting the introduction of evidence regarding the compensation of Clark's expert, Dr. Shuman; (b) disallowing impeachment evidence regarding Dr. Lakin's divorce and child; or (c) disallowing testimony of Bethany Clark's drug conviction. Sixth, and finally, we find that the circuit court did not abuse its discretion when it admitted, through Dr. Lakin's testimony, the medical report dictated by nurse practitioner Ashley Weiderhold that was later reviewed and signed by Dr. Lakin.

FACTS

¶4. On January 5, 2008, Kyllie Clark was left in Clark's sole care at around 3 p.m. when his wife, Bethany, and two teenagers staying with the Clarks left their home. Clark , 2019 WL 5566234, at *2. From approximately 3 p.m. to 5:30 p.m., no one besides Clark witnessed what occurred in the Clark household. Id. When Bethany and the teenagers returned, Kyllie's condition prompted alarm. Id. at *2. Clark said that approximately five or ten minutes before Bethany and the teenagers returned, Kyllie had made a gasping sound. Id. After one of the teenagers called 911, Clark brought Kyllie into the bedroom where she went limp. Id. Bethany brought Kyllie back to the living room and attempted CPR. Id.

¶5. Kyllie was taken to a local hospital and later transferred to Le Bonheur Children's Hospital in Memphis, Tennessee, for specialized care. Id. at *2. Kyllie was diagnosed with rib fractures

, retinal and subdural hemorrhages and brain swelling. Id. The hospital staff ultimately declared Kyllie brain dead and terminated life support. Id. at *2. Dr. Lakin, who would later serve as the State's primary witness, examined Kyllie at Le Bonheur and concluded that her death had been caused by SBS/AHT. Id. at *2. Dr. Lakin's conclusion was memorialized in a report dictated by Ashley Weiderhold, a nurse practitioner. Dr. Lakin reviewed and signed the same report.¹

STANDARD OF REVIEW

¶6. "When reviewing a trial court's decision to allow or disallow evidence, including expert testimony, we apply an abuse of discretion standard." Watts v. Radiator Specialty Co. , 990 So. 2d 143, 145-46 (Miss. 2008) (internal quotation marks omitted) (quoting Canadian Nat'l/Ill. Cent. R.R. v. Hall , 953 So. 2d 1084, 1094 (Miss. 2007) ). "Therefore, the decision of a trial court will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ " Miss. Transp. Comm'n v. McLemore , 863 So. 2d 31, 34 (Miss. 2003) (quoting Puckett v. State , 737 So. 2d 322, 342 (Miss. 1999) ).

¶7. Moreover, "[w]hen testing the sufficiency of the evidence, this Court uses a de novo standard of review." Sanford v. State , 247 So. 3d 1242, 1244 (Miss. 2018) (citing Brooks v. State , 203 So. 3d 1134, 1137 (Miss. 2016) ). Thus, " ‘[t]he relevant question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ’ " Id. (quoting Hearn v. State , 3 So. 3d 722, 740 (Miss. 2008) ). And "[t]he evidence is viewed in the light most favorable to the State." Id. (quoting Henley v. State , 136 So. 3d 413, 415 (Miss. 2014) ).

¶8. Additionally, "[j]ury instructions are generally within the discretion of the trial court and the settled standard of review is abuse of discretion." Bailey v. State , 78 So. 3d 308, 315 (Miss. 2012) (citing Newell v. State , 49 So. 3d 66, 73 (Miss. 2010) ). We "review[ ] jury instructions as a whole[,]" and "[w]hen those instructions, ‘taken as a whole fairly—although not perfectly—announce the applicable primary rules of law ... no reversible error will be found.’ " Moody v. State , 202 So. 3d 1235, 1237 (Miss. 2016) (quoting Boyd v. State , 47 So. 3d 121, 123-24 (Miss. 2010). And "constitutional questions are reviewed de novo." Armstead v. State , 196 So. 3d 913, 916 (Miss. 2016) (citing Smith v. State , 25 So. 3d 264, 267 (Miss. 2009) ).

DISCUSSION

¶9. The State and Clark filed petitions for certiorari raising the following three issues: first, whether the Court of Appeals applied an incorrect Daubert standard in analyzing the trial court's admission of portions of Dr. Lakin's expert testimony; second, whether, when the Court of Appeals reverses and orders a new trial because the State's expert does not meet Mississippi Rule of Civil Procedure 702 reliability standards, the Court of Appeals must also address the defendant's other assignments of error; and third, whether the Double Jeopardy Clauses of the United States and Mississippi Constitutions forbid retrial in a circumstantial evidence case in which the State does not introduce evidence negating non-criminal, medical causes of the condition causing the injury. Because we reverse the Court of Appeals based on our analysis of the first issue on certiorari, we do not address the remaining two issues raised on certiorari. Further, since we are reversing the Court of Appeals and reinstating the judgment of the circuit court, we also must address the remaining six assignments of error raised on appeal.

I. Dr. Lakin's Testimony

¶10. Dr. Lakin, who examined Kyllie at Le Bonheur hospital, became the State's expert witness and testified about SBS/AHT. At trial, Dr. Lakin testified that she has "lectured extensively in abusive head trauma

." She then went on to explain SBS/AHT to the trial court and to the jury. She described how around the "late [1960s] or early [1970s]" medical findings showed "injured children" with "intracranial hemorrhages" that resulted from "what we call whiplash injuries." She continued explaining that these "injuries involve particularly intracranial hemorrhages

called subdural hemorrhages, which is a bleeding that occurs in the dura layer of the brain." She testified that the term used to describe what caused these injuries was "beginning to be used as shaken baby syndrome." She explained that ultimately, SBS has been reduced to a "component" of the larger diagnosis, AHT.

¶11. In her testimony, Dr. Lakin importantly distinguished between the possession of a prior "history" and a "lack of significant history." She testified that in a case in which she knows of a prior history, like a car accident, she would not "report that to Child Protective Services because [she] know[s] that they have been in a car accident and they have sustained those life-threatening or fatal injuries." She continued to explain that in a case that lacks a prior history in which the child's injuries are consistent with a prior history, like the car accident case, then "in [her] opinion, that combination of findings with a lack of significant history would, in [her] opinion, be consistent with abusive head trauma

or nonaccidental trauma."

¶12. Dr. Lakin concluded that the injuries Kyllie suffered were the result of AHT. The Court of Appeals, however, found that the circuit court erred by admitting Dr. Lakin's trial testimony. We disagree. The circuit court did not err by admitting Dr. Lakin's testimony.

¶13. We must not allow ourselves to become the gatekeeper. As we have stated in McLemore : "We are confident that our learned trial judges can and will properly assume the role as gatekeeper on questions of admissibility of expert testimony .... The trial court can identify the specific indicia of reliability of evidence in a particular technical or scientific field." McLemore , 863 So. 2d at 40.

¶14. Rather than becoming the gatekeeper, our function is to determine whether the actual gatekeeper, the trial judge, has abused...