Clark v. State Of Miss.

Decision Date05 August 2010
Docket NumberNo. 2008-KA-00549-SCT.,2008-KA-00549-SCT.
Citation40 So.3d 531
PartiesWanda CLARKv.STATE of Mississippi.
CourtMississippi Supreme Court

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Cheryl Ann Webster, Clarksdale, attorney for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.

CHANDLER, Justice, for the Court:

¶ 1. After a jury trial, Wanda Clark was convicted of two counts of felonious child abuse and sentenced on each count to eighteen years in the custody of the Mississippi Department of Corrections, with six years suspended, to run concurrently. See Miss.Code Ann. § 97-5-39(2)(a) (Rev.2006). On appeal, Clark argues that the trial court erred by: (1) denying her motion for a mistrial based on the court's comments to the victim; (2) admitting the testimony of an employee of the Mississippi Department of Human Services; (3) excluding defense exhibits; and (4) refusing her “theory of the case jury instruction. Finding no error, we affirm.

FACTS

¶ 2. On March 29, 2005, Johnnie Graves visited her granddaughter, Hailey, 1 at Clarksdale High School to give her an Easter basket. Graves testified that she had brought the basket to the school because, despite repeated telephone calls and a visit, Graves had been unable to contact anyone at Hailey's home. Graves visited with Hailey alone in the principal's office. She observed that Hailey was sitting with her head down, and Graves asked her what was wrong. At that point, Graves observed a cut on Hailey's ear and abrasions on her arms. Graves directed Hailey to remove her blouse, and then she observed more cuts and bruises on Hailey. Graves called the principal, who contacted the Mississippi Department of Human Services (DHS). DHS launched an investigation. Photographs taken that day of Hailey's body showed cuts, bruises, and scars on her ear, her face, her arm, her legs, and her back.

¶ 3. As a result of the investigation, Hailey's father, Kenneth Clark (Kenneth), and her stepmother, Wanda Clark (Clark) (collectively, the Clarks), were charged with two counts each of felonious child abuse based on three incidents: (1) count one charged Kenneth and Clark with breaking Hailey's arm on or about February 13 2001; (2) count two charged Kenneth and Clark with beating Hailey with an extension cord on or about January 9, 2005; and (3) count three charged Clark with beating Hailey with an extension cord on or about March 25, 2005. Hailey did not return home and began living with her grandmother on March 29, 2005.

¶ 4. The Clarks were tried together. At the trial, it was stipulated that Kenneth had been awarded custody of Hailey when she was approximately nine years old. At that time, Kenneth was married to Clark and she had custody of two daughters who were younger than Hailey. Hailey was eighteen years old at the time of the trial. According to Hailey, for the first two years she had lived with the Clarks, things had been good, but after her baby brother was born in 2000, the Clarks began administering severe whippings when she misbehaved or failed to properly execute her household chores. Hailey testified that the injuries shown in the photographs were from whippings with an extension cord. She testified that the Clarks had whipped her other siblings with a belt, but not very severely.

¶ 5. Although Hailey testified that she was beaten almost daily, she testified specifically about the three specific incidents of abuse charged in the indictment. Hailey testified that, in February 2001, Kenneth and Clark had beaten her and Kenneth had picked her up and dropped her to the floor, breaking her arm. Kenneth had brought her to the hospital, where she received treatment. Hailey said that, to protect her father, she told the doctor she had tripped and fallen. Hailey testified that in another incident on January 9, 2005, both Kenneth and Clark had whipped her with extension cords as punishment for using the phone. She testified that she had missed two days of school due to injuries to her face. Hailey testified that, in the third incident, on March 25, 2005, Clark had accused her of taking candy from her little brother's Easter basket and had whipped her with an extension cord as punishment.

¶ 6. Hailey also testified about her day-to-day life with the Clarks. Hailey stated that Clark had administered most of the whippings when Kenneth was at work. She testified that food was withheld as punishment. Hailey testified that on one occasion, she was locked in a closet for days. She, and not the other children, had to do chores including housecleaning, mowing the grass, and washing the cars, and any errors yielded whippings from Clark or Kenneth. She stated that she had to walk to and from school every day and was not allowed to accept a ride from anyone, even her grandmother. Although the other children had beds and assigned bedrooms, she slept on the floor of the kitchen, living room, or den, or on a cot her father had bought her for Christmas. She testified that, before March 29, 2005, she never had told anyone about the abuse and instead on several occasions had lied about her living conditions in order to protect her family.

¶ 7. Graves testified that, several times, she had seen Hailey walking the three to four miles home from school and had offered her a ride, but Hailey always had declined. George Ellis, the Clarks' neighbor, testified that he had seen Hailey mowing the yard or washing cars one or two times per week, and that she had been the only family member he had seen working outside. Dr. Michael Barr, an orthopedic surgeon, testified that, on February 13, 2001, he had performed surgery to repair an unusually severe fracture of the left proximate humerus, but he had seen no reason to contact DHS. Dr. Peggy Wells of the Childrens' Clinic of Clarksdale testified that she had examined Hailey on March 29, 2005. She testified that Hailey had scars on her face, chest, back, shoulders, legs, back of the arms, and her back, which was completely covered with scars down to the waist. Dr. Wells stated that there were many old scars with other new scars overlapping. Dr. Wells stated that, at a one-week follow-up visit, Hailey had gained nine pounds, had an improved appearance, and seemed more relaxed.

¶ 8. Christina Shumpert, who worked with DHS as a family protection specialist, testified about her investigation of the allegations of abuse. On the evening of March 29, 2005, she went to Hailey's home with two law enforcement officers and separately interviewed each family member. When Shumpert asked Clark where Hailey slept, Clark produced a cot from under Clark's bed. Clark told Shumpert that Hailey had come home with the injuries, and that a boy had done it. Kenneth also told Shumpert that Hailey had come home with the injuries. Both parents told Shumpert that they spanked with a belt or ruler as punishment.

¶ 9. In their defense, Clark and Kenneth attempted to show that they did not cause the injuries depicted in the photographs of Hailey. Clark testified that neither she nor Kenneth ever had whipped Hailey with an extension cord. She testified that she had been unaware of Hailey's injuries until her attorney had shown her the photographs. Clark testified that Hailey shared a bedroom with her sisters. Clark testified that Hailey had sneaked out of the house numerous times. For that reason, to keep watch over Hailey, Clark had made her sleep on a cot in the master bedroom. Clark denied that she ever had withheld food or locked Hailey in a closet. Kenneth testified that he had not broken Hailey's arm and had not beaten her with an extension cord. Kenneth testified that he had been unaware of Hailey's injuries until viewing the photographs. He admitted that he had required Hailey to walk home from school and not to accept a ride from anyone for safety purposes. Kenneth testified that punishment for extreme misbehavior by any of the Clarks' children could include whippings with a belt or ruler. Clark testified that she never had beaten Hailey with a belt.

¶ 10. Hailey's two stepsisters testified that they never had seen Clark or Kenneth whip Hailey with an extension cord. One stepsister testified that Hailey had confided in her about having had physical fights with boys; however, she had never seen Hailey with injuries from those fights resembling those shown in the photographs. Several other friends and relatives of the Clarks testified about time they had spent at the Clark home; the Clarks had seemed to love Hailey, and they had witnessed no inappropriate discipline or abuse of Hailey or the other children.

¶ 11. Based on Hailey's testimony that Kenneth, not Clark, had broken her arm, the trial court granted the State's motion to dismiss count one as to Clark. The jury found Clark guilty of counts two and three, which charged Clark with whipping Hailey with an extension cord on two occasions. The jury acquitted Kenneth of count one, but was unable to reach a verdict as to his guilt on count two. Clark appeals.

I. WHETHER THE TRIAL COURT ERRED BY REFUSING TO GRANT A MISTRIAL BASED UPON THE COURT'S COMMENTS TO THE ALLEGED VICTIM FOLLOWING HER TESTIMONY.

¶ 12. After Hailey's testimony, the trial court stated: “You may be excused. Thank you. I think you held up nicely.” Hailey replied: “You[‘re] welcome.” Clark and Kenneth jointly moved for a mistrial arguing that the court's comments were improper because they could have swayed the jury's sympathy toward Hailey. The court explained that the purpose of the comments had been to encourage the child witness, who “had a heavy hand laid on her by each of the two attorneys.” The court denied the motion for a mistrial, but granted the prosecution's request for a limiting instruction.

¶ 13. Before testimony resumed the next day, the trial court gave the following instruction to the jury:

Let me say to you that on yesterday, near the
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