James v. State, 96-KA-01058-COA.

• Decision Date: 26 September 2000
• Docket Number: No. 96-KA-01058-COA.,96-KA-01058-COA.
• Citation: 777 So.2d 682
• Parties: Dayon JAMES a/k/a Dayon Hasan James, Sr., Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

777 So.2d 682

Dayon JAMES a/k/a Dayon Hasan James, Sr., Appellant, v. STATE of Mississippi, Appellee.

No. 96-KA-01058-COA.

Court of Appeals of Mississippi.

September 26, 2000.

Joseph P. Hudson, James Donald Evans, III, Gulfport, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

EN BANC

MODIFIED OPINION ON MOTION FOR REHEARING

IRVING, J., for the Court:

¶ 1. On motion for rehearing, the original opinion is withdrawn, and this opinion is substituted. Dayon James a/k/a Dayon Hasan James, Sr. was indicted by the Grand Jury of the First Judicial District of Harrison County for two counts of capital murder while in the commission of felonious child abuse. He was convicted of count one¹ by a jury and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Following the verdict, James moved for a new trial on the basis of jury impropriety in the consideration of extraneous information and for a judgment notwithstanding the verdict. The motions were denied, and James appealed his conviction, assigning numerous errors which we quote verbatim from his brief:

I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO QUASH THE INDICTMENT

II. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S FIRST MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE

III. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S SECOND MOTION

FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE

IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

V. THE TRIAL COURT ERRED IN DENYING APPELLANT'S COUNSEL'S REQUEST TO POLL THE JURY AS REQUESTED BY APPELLANT'S NOTICE OF JURY EXPOSURE TO EXTRANEOUS INFORMATION

VI. THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING APPELLANT'S FAILURE TO TESTIFY AS A FACTOR IN DENYING APPELLANT'S MOTION FOR JNOV, OR IN THE ALTERNATIVE, MOTION FOR NEW TRIAL

VII. THE TRIAL COURT ERRED IN REFUSING TO PERMIT TESTIMONY REGARDING THE REASON FOR LACK OF HISTORY OF THE NEAR ACCIDENT IN THE MEDICAL RECORDS AS SAID TESTIMONY WAS ESSENTIAL TO APPELLANT'S THEORIES OF DEFENSE

VIII. THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTION D-14

IX. THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTION D-3

X. THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTION D-12

XI. THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTION D-19

XII. THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTION D-20

XIII. THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-1

XIV. THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-2

XV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL ON THE GROUNDS OF IMPROPER JURY ARGUMENT.

XVI. THE TRIAL COURT ERRED IN GIVING THE IMPROPER STANDARD OF PROOF TO THE JURY PRIOR TO THE START OF TESTIMONY

XVII. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO EXERCISE ITS PEREMPTORY CHALLENGES IN VIOLATION OF BATSON

Finding reversible error in the trial judge's refusal to poll the jury regarding the allegation of the jury's consideration of extraneous information, we reverse and remand.

FACTS

¶ 2. Dayon James, his wife, Toni, and their two children were living at the Willow Wood apartment complex in Gulfport, Mississippi in June 1995. Consuella Smith and her family also lived at Willow Wood in June 1995. Smith's family consisted of Smith, her three children and a live-in boyfriend, Kevin Keyes, who was also the father of one of Smith's children. The testimony at trial was that the two families had developed a close relationship and regularly babysat for each other.

¶ 3. On the morning of June 7, 1995, James agreed to watch Smith's youngest child, Shenekqua, a female infant approximately six weeks of age, at his and Toni's home while his wife, Toni, their two children, Consuella, and her other two children went shopping. Consuella brought Shenekqua over to the Jameses before she left on the shopping trip. When Shenekqua was brought to the Jameses, Toni took her and placed her first in a room being occupied by James's sister, Princess, but removed Shenekqua to Toni and James's bedroom before leaving to go shopping. When Consuella and Toni returned to the apartment, they discovered that Shenekqua was limp and having trouble breathing. Shenekqua was rushed to Gulfport Memorial Hospital where she was seen in the emergency room.

¶ 4. Hospital records show that Shenekqua was brought to the emergency room at 2:30 p.m. on June 7, 1995. After Shanekqua was stabilized to the extent possible, she was transferred at or about 6:30 p.m. to the pediatric care unit at the University of South Alabama. A cat scan performed on Shenekqua on June 8, 1995, around 4:30 p.m. showed she had what was termed an acute hematoma on the brain. Three days later, on June 10, 1995, Shanekqua died.

¶ 5. An autopsy performed on June 11, 1995, generated a medical opinion that Shanekqua died from what is referred to as "shaken baby syndrome," although the pathologist who performed the autopsy changed his opinion during the trial to state the cause of death as "shaken baby impact syndrome." The following day James was arrested and charged with capital murder. Other facts relevant to the resolution of the issues will be discussed under the designated issues.

ANALYSIS OF ISSUES PRESENTED

I. Motion to quash the indictment

(a) The indictment failed to provide adequate notice of the charge.

¶ 6. James contends that the indictment is so vague and ambiguous that it does not apprise him of the charge with sufficient certainty and specificity to permit him to adequately prepare a defense, or to plead any judgment in the case at bar to any later proceedings against him based on the same alleged offense in contravention of Article 3 § 22 of the Mississippi Constitution and the double jeopardy clause of the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment.

¶ 7. Specifically, James contends that how the injuries to Shanekqua occurred was not alleged in the indictment and no testimony or evidence was introduced at trial to define how the injuries occurred. James then asserts that the actual cause of the death of Shanekqua was modified from the witness stand on the date of trial from "shaken baby syndrome" to "shaken baby impact syndrome" and that the two are different. James further contends that the failure of the indictment to state specific facts indicative of his alleged conduct which constituted felonious abuse allowed the State the freedom to say he committed any one of several acts, all of which could result in the child being injured and resulting in "shaken baby syndrome" or "shaken baby impact syndrome." James's final contention in this regard is that the underlying facts necessary to establish the elements of the underlying felony of felonious child abuse are absent from the indictment and the evidence; therefore, the indictment is defective as it does not sufficiently apprise him of the charges against him. Thus, he claims, the burden of proof was improperly shifted to him at trial to prove what his actions were on the date in question when it was the State's burden to prove that his conduct fell within the statute.

¶ 8. The indictment reads, in pertinent part, as follows:

CAPITAL MURDER—TWO COUNTS

Section 97-3-19(2)(f), Miss.Code of 1972, as amended

COUNT I

That: DAYON HASAN JAMES, SR.

in the First Judicial District of Harrison County, Mississippi, on or about June 10, 1995, did then and there wilfully, unlawfully, feloniously and with or without design to effect death, kill and murder Shaneque Keyes, a human being, while in the

commission of the crime and felony of Felonious Abuse and/or Battery of a Child, as defined by Section 97-5-39(2), Miss.Code of 1972., as amended,

contrary to the form of the statue in such cases made and provided and against the peace and dignity of The State of Mississippi.

¶ 9. The Mississippi Supreme Court has made it "clear that the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Medina v. State, 688 So.2d 727, 730 (Miss.1996). The indictment must be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Peterson v. State, 671 So.2d 647, 653-54 (Miss.1996); URCCC 7.06. The indictment is held to be sufficient if it contains the seven factors enumerated in URCCC 7.06.

1. The name of the accused;

2. The date on which the indictment was filed in court;

3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;

4. The county and judicial district in which the indictment is brought;

5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;

6. The signature of the foreman of the grand jury issuing it; and

7. The words "against the peace and dignity of the state."

Id.

¶ 10. The indictment in the case presently before this Court met these requirements. The indictment contained a charge of capital murder defined in Miss.Code Ann. § 97-3-19(2)(f). Therefore, the indictment was in compliance with Miss. Code Ann. § 99-17-20, and it is not necessary to specifically set forth the elements of the underlying felony used to elevate the crime to capital murder. Gray v. State, 728 So.2d 36, 71 (Miss.1998); Mackbee v. State, 575 So.2d 16, 34-35 (Miss. 1990); see Bullock v. State, 391 So.2d 601, 606 (Miss.1980)

; Bell v. State, 360 So.2d 1206, 1208-09 (Miss.1978). The indictment was sufficient because it informed James of the underlying felony although it did not set forth the facts constituting the underlying felony. This issue has no merit.

(b) Amendment to the indictment

¶ 11. James contends that it was error to allow...