Kolberg v. State

• Decision Date: 29 August 2002
• Docket Number: No. 2000-KA-00786-SCT.,2000-KA-00786-SCT.
• Parties: Bryan KOLBERG a/k/a Bryan Joseph Kolberg v. STATE of Mississippi.
• Court: Mississippi Supreme Court

829 So.2d 29

Bryan KOLBERG a/k/a Bryan Joseph Kolberg v. STATE of Mississippi.

No. 2000-KA-00786-SCT.

Supreme Court of Mississippi.

August 29, 2002.

Rehearing Denied October 31, 2002.

Clive Adrian Stafford Smith, New Orleans, LA, Andre DeGruy, Jackson, Attorneys for Appellant.

Office of the Attorney General By: John R. Henry, Attorney for Appellee.

EN BANC.

CARLSON, J., for the Court.

s 1. This is Bryan Kolberg's second time before us. He was indicted on October 11, 1988, for the August 24, 1988, death of twenty-two month-old Madison Watson. Kolberg's first trial began on December 3, 1990, and at the conclusion of the guilt/innocence phase of the trial, the jury found Kolberg guilty of capital murder. This same jury subsequently sentenced Kolberg to death. On appeal, this Court reversed and remanded both the conviction and sentence. See Kolberg v. State, 704 So.2d 1307 (Miss.1997)

.

s 2. Kolberg's second trial began on February 22, 2000, and at the conclusion of that trial, the jury likewise found Kolberg guilty of capital murder; however, this second jury was unable to unanimously agree on punishment. Consequently, pursuant to Miss.Code Ann. § 99-19-103, the trial court imposed upon Kolberg a mandatory sentence of life imprisonment. Kolberg's subsequently filed post-trial motions were denied, and Kolberg has now timely perfected his appeal of the conviction of capital murder and sentence of life imprisonment to this Court.

FACTS

s 3. Bryan Kolberg lived with Laurel Watson and Laurel's infant daughter Madison for roughly a month. On August 19, 1988, Kolberg was at home with Madison while Laurel was at work. Kolberg's version of events was that he had driven Laurel to work around 8:00 a.m. and that Madison was in the car with them. Kolberg said that he and Madison returned to Laurel's house, where the two remained until later in the morning when he drove with Madison back to Laurel's place of employment. They remained there for approximately an hour.

s 4. Kolberg stated that upon returning to the house, he placed Madison in bed for a nap while he watched television. He heard a thump in the bedroom and went to check on Madison. When he entered the bedroom, he saw that she had fallen off the bed and was lying on the floor. Kolberg said that Madison only whimpered a little bit and he placed her back on the bed and she went back to sleep. Kolberg also said that he later returned to the bedroom to wake Madison to take her with him to pick Laurel up from work. He claimed that Madison would not wake up, so he took her to the emergency room sometime around 4:00 p.m. Madison was treated for head injuries, but to no avail. She remained in a coma for five days until she died on August 24, 1988.

s 5. Kolberg argued before the jury that he was not responsible for the injuries which ultimately caused Madison's death. He asserted that the injuries were either exclusively sustained as a result of Madison's fall from the bed or that her death resulting from the fall was caused in part by an earlier injury. The jury apparently agreed with the prosecution's theory that Kolberg struck Madison in the back of the head.

DISCUSSION

s 6. Counting subparts, Kolberg assigns approximately fifty-nine (59) perceived errors by the trial court for us to consider. We will address as many of these assignments of error as deemed appropriate.

I. WHETHER THE EVIDENCE FAILS TO EXCLUDE ANY REASONABLE POSSIBILITY THAT NO CRIME OCCURRED.

s 7. The prosecution's case against Kolberg was based on circumstantial evidence. It is fundamental that convictions of crime cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to the height which will exclude every reasonable doubt; that when in any essential respect the State relies on circumstantial evidence, it must be such as to exclude every other reasonable hypothesis than that the contention of the State is true, and that throughout the course of the trial, the burden of proof is on the State. It is our duty here to maintain these principles. Steele v. State, 544 So.2d 802, 808 (Miss. 1989) (quoting Hester v. State, 463 So.2d 1087, 1093 (Miss.1985) and Hemphill v. State, 304 So.2d 654, 655 (Miss.1974) quoting Westbrook v. State, 202 Miss. 426, 32 So.2d 251, 251 (1947)). We must accept the evidence in the light most favorable to the State, including all reasonable, favorable inferences. Steele, 544 So.2d at 809.

s 8. Kolberg asserts that his expert testimony proved that "Madison must have [either] fallen from the bed to the floor (a distance of some three feet), or she must have exacerbated an injury that she had previously received, or both." Specifically, he asserts that the testimony of his expert witnesses established other reasonable hypotheses, and that consequently, the State did not meet its burden of proof.

s 9. In Kolberg I we said:

We have held in numerous cases that the jury is the sole judge of the credibility of the witnesses and the weight to be attached to their testimony. We have further said that we will not set aside a guilty verdict, absent other error, unless it is clearly a result of prejudice, bias or fraud, or is manifestly against the weight of credible evidence. Cromeans v. State, 261 So.2d 453 (Miss.1972); Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); and Freeman v. State, 228 Miss. 687, 89 So.2d 716 (1956).

Kolberg I, 704 So.2d at 1311. The State correctly notes that on Kolberg's first appeal we held that the evidence was sufficient to support the jury's finding of guilt for capital murder. See Kolberg, 704 So.2d at 1311-12

. Thus, the State argues that this Court's decision in Kolberg's first appeal is controlling under "the law of the case" doctrine. The State, in citing Tunstall v. State, 767 So.2d 167 (Miss.1999), asserts that in Mississippi the law of the case is:

[A] doctrine [that] is similar to that of former adjudication. [It] relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure.

The State accurately recites the well known "law of the case doctrine", but in reality, this doctrine was not utilized in the majority opinion in Tunstall, but instead is found in Justice McRae's dissent, with citation to Fortune v. Lee County Bd. of Supervisors, 725 So.2d 747, 751 (Miss. 1998), quoting Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1376 (Miss.1990). In Simpson, this Court stated:

The rule is distinct from the rule of stare decisis and it is not a limitation upon the power of a court.¹ (Internal citations omitted). But if the facts are different, so that the principles of law announced on the first appeal are not applicable, as where there are material changes in the evidence, pleadings or findings, a prior decision is not conclusive upon questions presented on the subsequent appeal. (Citations omitted)... We do not think, however, that this rule is so fixed and binding upon the court that it may not depart from its former decision on a subsequent appeal if the former decision in its judgment after mature consideration is erroneous and wrongful and would lead to unjust results. Where the facts are the same, and where there has been no change of conditions or situations as that a change of decision would work wrong and injustice, the court may, on the subsequent appeal, correct its former decision where it is manifestly wrong.

564 So.2d at 1376-77.

s 10. While the State makes a laudable argument, inasmuch as a substantial amount of Kolberg's evidence was the same in both trials, there are significant differences. One of the State's witnesses from the first trial did not testify at the second trial. In the second trial, Kolberg called three expert witnesses who did not testify in the first trial. Kolberg also distinguishes the two trials by stating that he presented a "second impact" theory in the second trial which he did not present in the first. While we agree with the State that it is the similarity of facts and not the similarity of witnesses that is the key to this doctrine, we are constrained to find here that, based on the record before us, the doctrine does not apply in the case before us today.

s 11. Kolberg relies on Steele v. State, 544 So.2d 802 (Miss.1989); Wheeler v. State, 536 So.2d 1341 (Miss.1988); Hester v. State, 463 So.2d 1087 (Miss.1985); Biles v. State, 338 So.2d 1004 (Miss.1976); and Bell v. State, 207 Miss. 518, 42 So.2d 728 (1949) to support his assertion that the State failed to meet its burden of proof. Specifically, he asserts that "[t]he facts of Steele v. State are very difficult to distinguish from this case." It is true that we held the evidence in Steele insufficient "to establish anything more than a probability of guilt and did not `invest mere circumstances with the force of truth.'" 544 So.2d at 809.

s 12. In Steele, the defendant was found guilty of the capital murder of twenty-three month old Christina Sinclair. Steele and Christina's mother, Kathy, had begun dating and Steele occasionally babysat Christina. On the evening of October 10, 1984, Steele was babysitting Christina and said that she fell out of bed. He placed her back in the bed and when he returned to check on Christina, her eyes were rolled back in her head and she was gagging. An ambulance was dispatched to the residence and Christina was taken to the hospital. X-rays and CAT scans showed massive fracturing on the right side of Christina's skull and swelling on the right hemisphere of her brain. At trial, a...