DeHENRE v. State of Miss.

• Decision Date: 23 September 2010
• Docket Number: No. 2008-KA-00968-SCT.,2008-KA-00968-SCT.
• Parties: Malachy DeHENRE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

43 So.3d 407

Malachy DeHENRE
v.
STATE of Mississippi.

No. 2008-KA-00968-SCT.

Supreme Court of Mississippi.

July 1, 2010.

Rehearing Denied September 23, 2010.

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John A. Piazza, David M. Ratcliff, Laurel, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

EN BANC.

WALLER, Chief Justice, for the Court:

¶ 1. A trial court may declare a mistrial for misconduct that substantially and irreparably prejudices a party's case. During voir dire in this case, a prospective juror referred to the defendant, Dr. Malachy DeHenre, as an abortionist. We must decide whether this isolated statement required a mistrial. We find that it did not. Any harm caused by the statement was reparable, and the trial court took immediate action to cure any potential prejudice. All the panel members assured that they could set the comment aside and decide the case based solely on the evidence. Finding no reversible error with regard to the other issues raised by DeHenre, we affirm his conviction and sentence.

FACTS & PROCEDURAL HISTORY

¶ 2. Shortly after midnight on January 23, 1997, 911 operators dispatched Jones County deputies and paramedics to the home of Dr. Nyasha DeHenre (Nyasha). Nyasha's ex-husband, Malachy, was standing outside when law enforcement officials and medical personnel arrived. He directed them into the home, where they found Nyasha lying on the couch with a book lying across her stomach, her feet propped up, and a bullet wound to her head. Nyasha died several days later.

¶ 3. Malachy DeHenre (DeHenre) was charged with murder. His first trial, in 1998, ended when the jury deadlocked, with eleven members voting for acquittal and one for conviction. In December 2006, a grand jury reindicted DeHenre for murder. A second trial ensued in January 2008.

¶ 4. DeHenre testified that Nyasha had committed suicide. He said that Nyasha was in the midst of an emotionally difficult time. Earlier the same evening, Nyasha had returned from overseas after attending her father's funeral. DeHenre said that Nyasha had also had a heated phone conversation with her mother shortly before the shooting. According to DeHenre's version of events, he and Nyasha were in the same room; he was seated in a recliner and Nyasha was seated on a love seat. DeHenre said that he kept a loaded weapon in the recess of the love seat. As he stood up to adjust his pajamas, he noticed a flash of something metallic. Reflexively, he reached down to grab her arm. But just as he pulled her arm, the gun fired. After seeing that she had been shot, DeHenre said that he laid Nyasha down on the love seat and propped her legs on the arm of the couch. He did not recall her having a book or magazine. He then called Nyasha's mother before calling 911. DeHenre said that he then went to

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the bedroom and changed clothes as he waited for the ambulance to arrive. When asked why he had left Nyasha on the couch with a bullet in her head while he changed clothes, DeHenre said, "I was going with her to the hospital. I have to go with her in the ambulance. And I can't go just with my drawers."

¶ 5. The State's experts, Dr. Steven Hayne and Dr. Michael Baden, classified Nyasha's death a homicide. Both clarified that, by using the term "homicide," they simply meant the killing of one person by another. They concluded that the gun was fired from at least eighteen inches away, with twenty-four inches or greater being the probable distance. Baden further determined that Nyasha was shot while lying on her back with her head against the pillow. DeHenre's expert, Dr. Rodrigo Galvez, disputed Hayne's and Baden's opinions. Galvez said that there was incomplete, insufficient evidence to determine the distance from which the gun had been fired. Galvez also contended that Nyasha had been sitting up, not lying down, at the time of the shooting.

¶ 6. The jury convicted DeHenre of manslaughter. The trial court sentenced him to serve twenty years in prison, to pay a $10,000 fine, and to obtain a GED.¹ DeHenre now appeals to this Court.

DISCUSSION

I. The trial court did not abuse its discretion in refusing to declare a mistrial.

¶ 7. Rule 3.12 of the Uniform Circuit and County Court Rules provides that, on any party's motion, a trial court may declare a mistrial for misconduct "resulting in substantial and irreparable prejudice to the movant's case." URCCC 3.12. The decision to do so rests within the sound discretion of the trial court. Evans v. State, 725 So.2d 613, 649 (1998) (citations omitted). We will reverse the trial court's decision only for an abuse of discretion. Id.

¶ 8. During voir dire, panel members were asked the routine question of whether they could reach a decision based solely on the evidence. One juror responded, "Every man is entitled to a fair trial, but when DeHenre left here he became an abortionist." The defense moved immediately for a mistrial, which the trial court ultimately denied. The trial court promptly removed the juror and then addressed the remaining panel members.

THE COURT: ... Can all of you tell me now that whatever this person who obviously was—I don't know what her purpose was. I have no idea. But that was the most outrageous thing that I've seen in a long time in a courtroom. Can all of you tell me that you will put that aside?"

JURORS: Yes, sir.

THE COURT: I don't know whether you people come up here—we have come here today, this is a place where people come for justice. We don't come here to make acquisitions [sic] and make statements. I'm sure that that person, her purpose for doing that was to try to prejudice you in some way. But can all of you tell me at this time that you can put that aside[?]"

JURORS: Yes, sir.

THE COURT: Is there anyone here who can't put that aside?

[DEHENRE]: Your Honor—

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1266 (Miss.2003) (quoting Northup v. State, 793 So.2d 618, 623 (Miss.2001)). We have prescribed a three-part test for determining whether the unavailability of evidence violates a defendant's due-process rights:

(1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed;

(2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and

(3) the prosecution's destruction of the evidence must have been in bad faith.

Murray v. State, 849 So.2d 1281, 1286 (Miss.2003) (quoting State v. McGrone, 798 So.2d 519, 523 (Miss.2001)). All three prongs must be satisfied.

¶ 15. DeHenre's argument fails in two respects. First, there is nothing in the record to suggest that the State destroyed the hair samples or the nightgown in bad faith. Bad faith requires "evidence of fraud, willful or deliberate destruction of evidence[,] or a desire to suppress the truth...." Murray, 849 So.2d at 1286. Nothing suggests that type of behavior here. The State expressed that, to the best of its knowledge, no one had destroyed any evidence. DeHenre offered no evidence to the contrary. Further, nothing shows that the State prevented DeHenre from presenting proof on the issue of bad faith. Cf. McGrone, 798 So.2d at 523 (police officers' refusal to appear at two separate hearings absolutely prevented defendant from presenting proof of bad faith).

¶ 16. Second, the exculpatory value of the hair samples and the nightgown is highly suspect. As discussed below, it is unlikely that either piece of evidence would have played a significant role in DeHenre's defense.

¶ 17. DeHenre assumes that the hair samples taken during the autopsy were taken from around the entrance-wound area. The samples taken from this area, he argues, would have shown gunpowder residue and thus confirmed a close-range gunshot. But the location from which the hair was taken is unknown. Dr. Steven Hayne, who performed the autopsy, confirmed that he did pull hair samples as part of his examination. According to Hayne, this is done routinely as a means of preserving DNA material. The samples, he explained, would have been pulled and sent to the crime lab largely as a matter of course. Yet neither Hayne nor his autopsy report could verify from where the hair was pulled. Thus even if the hair samples had been available, it is doubtful that they would have been of much value without knowing from where on the scalp they had been pulled. Furthermore, the fact that the entrance wound was located an inch or so below the hairline makes the surrounding hair less important due to the amount of skin surface around the wound site that did not have hair.²

¶ 18. The exculpatory value of the nightgown also is doubtful. DeHenre asserts that residue tests on this garment would have proven that the gun was not fired at the distance claimed by Hayne. Steve Byrd, a forensic scientist at the Mississippi Crime Laboratory, testified that he examined the nightgown visually, microscopically, and chemically. On both the right and left cuffs, he found residue "indicative of gunpowder particles." But he also found residue on a lower part of the gown, near the calf area. Byrd testified

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that, because of this wide spread of residue, he could not make any scientific conclusions about the distance of the gunshot. Byrd explained that he received the gown in poor condition, cut up and wadded in a paper bag. As a result, he could not rule out the possibility that there had been a "transfer of particles." All in all, Byrd stated that he could not make a valid test one way or another based on the condition of the nightgown.

¶ 19. Importantly, the jury heard both sides' arguments concerning the ramifications of the missing hair samples and nightgown. Hayne and Baden asserted that the hair samples were nonessential due to amount of nonhairy skin...