Harrison v. State, No. 90-DP-1345

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtDAN M. LEE; HAWKINS
Citation635 So.2d 894
Docket NumberNo. 90-DP-1345
Decision Date14 April 1994
PartiesHenry Lee HARRISON v. STATE of Mississippi.

Page 894

635 So.2d 894
Henry Lee HARRISON
v.
STATE of Mississippi.
No. 90-DP-1345.
Supreme Court of Mississippi.
April 14, 1994.

Page 895

Thomas M. Fortner, Jackson, John H. Holdridge, New Orleans, LA, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

STATEMENT OF THE CASE

Henry Lee Harrison was indicted in the Circuit Court of Jackson County, Mississippi, for the capital murder of seven year-old April Sherry Turner during the commission of a rape. The lower court granted Harrison's change of venue motion and trial commenced on June 4, 1990, in Forrest County. The jury convicted Harrison and following a sentencing hearing, imposed the death penalty. Harrison duly perfected his appeal to this Court and assigns the following as error:

1. THE TRIAL COURT ERRED IN DETERMINING THAT HENRY HARRISON WAS COMPETENT TO STAND TRIAL.

2. THE TRIAL COURT ERRED IN REFUSING HENRY HARRISON A JURY TRIAL ON THE ISSUE OF COMPETENCE.

3. THE TRIAL COURT ERRED IN REFUSING TO RECUSE ITSELF INASMUCH AS IT HAD EXPRESSED OPINIONS AS TO DEFENDANT'S COMPETENCE PRIOR TO THE COMPETENCY HEARING.

4. THE TRIAL COURT ERRED IN FAILING TO RECUSE ITSELF FROM HEARING THE RECUSAL MOTION.

5. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE PROSECUTION'S MOTION TO ADMINISTER ANTI-PSYCHOTIC MEDICATION TO HENRY LEE.

6. GIVEN HENRY LEE'S LIFE-LONG MENTAL RETARDATION AND CHRONIC PARANOID SCHIZOPHRENIA, EXECUTION IS A DISPROPORTIONATE PUNISHMENT IN HIS CASE.

7. HENRY LEE HARRISON WAS IMPROPERLY DENIED FUNDS TO RETAIN THE ASSISTANCE OF EXPERTS IN FORENSIC PATHOLOGY AND FORENSIC ODONTOLOGY.

8. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING TESTIMONY BY DR. MICHAEL WEST.

9. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING

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TESTIMONY BY DR. PAUL MCGARRY.

10. THE TRIAL COURT ERRED IN REFUSING A CONTINUANCE FOR DEFENSE COUNSEL TO INTERVIEW DR. PAUL MCGARRY AFTER THE PROSECUTION PROFFERED EXPERT OPINION THAT HAD NOT BEEN PROVIDED IN DISCOVERY.

11. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING TESTIMONY BY DR. HENRY MAGGIO.

12. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A CONTINUANCE.

13. THE PROSECUTION'S PEREMPTORY STRIKES OF JURORS HOLLOWAY, CURRY, AND ROBERTSON VIOLATED BATSON V. KENTUCKY.

14. THE TRIAL COURT'S STRIKE OF JUROR DEXTER RUSSELL WHO STATED HE COULD GIVE THE DEATH PENALTY WAS ERROR.

15. THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S CHALLENGE FOR CAUSE OF A JUROR WHO FELT STRONGLY THAT A PERSON CONVICTED OF MURDER AND RAPE SHOULD GET THE DEATH PENALTY.

16. THE TRIAL COURT ERRED IN OVERRULING THE CHALLENGE FOR CAUSE FOR A JUROR WHO STATED SHE COULD NOT BE FAIR.

17. THE TRIAL COURT'S EXCUSALS FOR CAUSE WERE ERROR.

18. EXECUTION OF A DEFENDANT ABSENT A FINDING OF MENS REA IS UNCONSTITUTIONAL.

19. THE TRIAL COURT ERRED IN ITS DEFINITION OF THE AGGRAVATING CIRCUMSTANCE "ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL."

20. THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-3 AT SENTENCING.

21. THE INTRODUCTION OF NUMEROUS GRUESOME PHOTOGRAPHS WAS ERROR.

22. THE DISTRICT ATTORNEY ABUSED HIS DISCRETION IN SEEKING THE DEATH PENALTY AGAINST HENRY LEE HARRISON, A BLACK, FOR THE MURDER OF APRIL TURNER, A WHITE.

23. THE NUMEROUS INSTANCES OF CHARACTER EVIDENCE OF THE VICTIM REQUIRE REVERSAL OF THE DEATH SENTENCE.

24. HENRY HARRISON'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE PROSECUTION'S RELIANCE ON EXTRAJUDICIAL "LAW."

25. THE IMPROPER ARGUMENT BY THE PROSECUTION WARRANTS REVERSAL IN THIS CAUSE.

26. THE JURY'S FINDING THAT THE VICTIM WAS RAPED WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

27. THE ERRORS TAKEN TOGETHER ARE CAUSE FOR REVERSAL.

28. THE PROSECUTION COMMITTED REVERSIBLE ERROR IN COMMENTING IN CLOSING ON DEFENDANT'S DECISION NOT TO TESTIFY.

The district attorney in this case failed to disclose certain critical evidence to the defense as required by the Mississippi Uniform Criminal Rules of Circuit Court Practice. When the "surprise" evidence was admitted at trial, the lower court refused to follow the procedures adopted by this Court for remedying such problems. This Court can only conclude that these errors denied Harrison a fair trial. Therefore, we have no choice but to reverse his conviction and sentence.

The evidence withheld from the defense was in the form of expert opinion testimony, and was the only proof offered on the issue of rape, a necessary element of the offense charged in the indictment. Under these circumstances, it was also error for the lower court to refuse Harrison's request for an expert to aid in his defense.

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Finally, although ultimately rejecting Harrison's claim, the issue of involuntary medication of a defendant may arise when Harrison is retried. Accordingly, we address that issue in light of recent federal decisions. The numerous issues raised by Harrison but not addressed in the body of this opinion lack merit and do not warrant discussion.

STATEMENT OF THE FACTS

On Saturday, September 2, 1989, seven year-old April Sherry Turner was riding her bicycle with a friend in Gautier, Mississippi. The two children rode to a nearby convenience store and April went inside. Henry Lee Harrison, the appellant, was outside the store. According to the other little girl, when April came out and got on her bicycle, Harrison chased her out of sight. April did not come home that night. On September 3, 1989, searchers found April's nude, mutilated body in a wooded area close to the neighborhood where she lived. The child's bloody shirt was knotted tightly around her neck.

As part of the murder investigation, the body of April Turner was examined by forensic pathologist, Dr. Paul McGarry. Upon removing the knotted shirt, Dr. McGarry observed thirty-six stab wounds to the child's deeply indented neck and throat. He observed six more stab wounds on her forehead and one behind her left ear. Some of the wounds appeared to have been made by a sharp instrument while others exhibited a "star-shaped crisscross" configuration. In addition to the stab wounds, Dr. McGarry documented a deep curved laceration of the child's forehead above her right eyebrow. This wound displayed swelling and hemorrhaging indicating that April was alive when the blow fell. The doctor next noted extensive bruising of the head and face and extensive abrasions over the back of the body. The child's genital area had been subjected to a "massive penetrating tearing injury" so severe that nothing separated her vagina from her rectum. Finally, the doctor noted extensive rubbing type abrasions on the outside and the inside of the lips.

Upon being called by the State at trial and after being qualified as an expert witness, Dr. McGarry offered several opinions based on the injuries he had observed. He believed that some of the stab wounds were caused by something with a long tapering point and sharp edges. The curved laceration above April's eye was consistent with a downward blow from the blood-stained metal canister recovered by authorities. Finally, Dr. McGarry offered his opinion that April's vaginal and anal injuries were caused by the forceful penetration of a penis. Thus, he concluded that despite the lack of positive tests for semen, April Turner was raped before being murdered.

In addition to the above opinions on the causes of the victim's various injuries, Dr. McGarry offered expert testimony to the effect that April Sherry Turner was alive and conscious at the time the injuries were inflicted. His opinion was that strangulation was the cause of death.

McGarry and law enforcement officers noted wounds on the body of April Turner that appeared to be bite marks. Accordingly, the child's body was examined by Dr. Michael West, a forensic odontologist. At trial Dr. West was called by the State to testify to the injuries he discovered and the possibility that they were caused by the defendant. His method was to directly compare study models of Harrison's teeth to the wounds on the victim. Harrison was found to exhibit a number of highly distinctive dental characteristics. For example, he was missing a central incisor on his upper jaw, and he had only two of the typical four lower incisors. Dr. David Bonderer, a dentist who participated in making models of Harrison's teeth testified that the defendant's particular dental configuration was "very unique."

Dr. West photographed and videotaped the correlations he found. Some of the photographic and videotape comparisons were introduced as exhibits to his testimony. West testified that he was able to identify over forty-one bite marks on the body that were inflicted by Harrison. They were located "from her head to her ankle, front, backside, rear; completely covering the body." No bite marks were found that were inconsistent with the teeth of the defendant. Additionally, West testified that in his opinion, some of the bites were inflicted while the victim was

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alive and responsive while others occurred while she was unconscious or dead.

Deborah Haller, a forensic serologist employed by the Mississippi Crime Laboratory examined several items submitted in connection with the investigation of the death of April Turner. She testified that both external and vaginal swabs tested negative for presence of seminal fluid. She further testified that oral and esophageal swabs tested positive for two components of semen. According to Haller, the presence of these substances strongly indicated but did not confirm the presence of semen. Based on this and other evidence presented at trial, Harrison was convicted and sentenced to death.

DISCUSSION

10. THE TRIAL COURT ERRED IN REFUSING A CONTINUANCE FOR DEFENSE COUNSEL TO INTERVIEW DR. PAUL MCGARRY AFTER THE PROSECUTION PROFFERED EXPERT OPINION THAT HAD NOT BEEN PROVIDED IN DISCOVERY.

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