Kolberg v. State, No. 93-DP-00825-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPITTMAN; SULLIVAN, P.J., and BANKS; McRAE; DAN LEE, C.J., concurs in part and dissents in part with separate written opinion joined in part by SMITH; SMITH; McRAE; DAN LEE; SMITH; SMITH
Citation704 So.2d 1307
PartiesBryan Joseph KOLBERG v. STATE of Mississippi.
Docket NumberNo. 93-DP-00825-SCT
Decision Date08 December 1997

Page 1307

704 So.2d 1307
Bryan Joseph KOLBERG
v.
STATE of Mississippi.
No. 93-DP-00825-SCT.
Supreme Court of Mississippi.
Dec. 8, 1997.

Page 1309

Clive A. Stafford-Smith, New Orleans, Travis Buckley, Ellisville, for Appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Asst. Atty. Gen., Jeffrey A. Klingfuss, Special Asst. Atty. Gen., Jackson, for Appellee.

En Banc.

PITTMAN, Justice, for the Court:

¶1 On October 11, 1988, Bryan Kolberg ("Kolberg") was indicted in the First Judicial District of Hinds County Circuit Court for the capital murder of Madison Watson in violation of Miss.Code Ann. § 97-3-19(2)(f) (Supp.1988). The alleged crime of child abuse occurred on August 19, 1988, resulting in Madison's death on August 24, 1988. The preliminary hearing was held on November 19, 1990, and the case went to trial on December 3, 1990.

¶2 Bryan Kolberg moved to Jackson, Mississippi, in January 1988. He met Laurel Watson and her twenty-two month-old daughter, Madison. At the end of June or the beginning of July 1988, Kolberg moved in with Laurel and Madison at 3347 1/2 Whitten Road. Prior to August 19, 1988, Madison began to have a lot of "accidents" while in the care of Kolberg. Kolberg explained all of them away as the child's clumsiness.

¶3 The week of August 19, 1988, Kolberg stayed at home from work while recuperating from a painful dental operation. He insisted that Madison stay with him instead of going to her normal baby sitter, Morina Jacobs. The evidence showed that on August 19, 1988, Kolberg was the only person who was in charge of Madison. That morning Kolberg and Madison drove Laurel to work. Afterwards, Kolberg and Madison returned home until approximately one o'clock. At that time Kolberg took Madison to see Laurel at work. During this lunch hour, Madison was playful and normal as any other twenty two month-old baby.

¶4 Kolberg returned home with Madison and put her down for a nap while he watched television in the other room. He testified that he heard a thump, and went in to check on Madison. She had fallen off the bed and was lying on the floor. So, Kolberg put her

Page 1310

back in bed and propped a pillow in such a way as to stop her from falling again. He testified that she whimpered a little before falling back to sleep.

¶5 Later, Kolberg went into the room to wake Madison and could not do so. He then took the time to dress Madison and take her to the hospital. On the way to the hospital, he stopped and informed Morina Jacobs' children that Madison was hurt really bad. Next, he stopped to get gas and ask directions to the hospital. Once at the hospital, Kolberg called Laurel and told her Madison would not wake up so he had brought her to the hospital. Laurel then came to the emergency room. In the emergency room, Kolberg told the doctors that Madison had fallen. The doctors diagnosed Madison with massive head injuries which, in their opinion, were inconsistent with the history given by Kolberg.

¶6 Kolberg told the doctors and others that Madison sustained the head injury by slipping while getting into her high chair earlier that day and falling off the bed later that afternoon. However, Madison had sustained massive head trauma including subdural and subgaleal hematomas. Medical testimony described Madison's injuries as the type usually seen in a head on automobile collision, or a fall from a two- or three-story building, or being severely beaten with a bat-like object. Kolberg contends that Madison died of previous injuries that were accelerated by the fall off the bed or in the alternative that the injuries leading up to Madison's death were inflicted a week before she went into the hospital.

¶7 Doctors struggled to save Madison's life, but their efforts were in vain. After languishing in a coma for five days, Madison died from massive brain swelling on August 24, 1988.

¶8 After a trial, a jury of Kolberg's peers found him guilty of the capital murder of Madison Watson while engaged in child abuse. Kolberg was sentenced to death by lethal injection and February 7, 1991, was set as the date for execution of the sentence. This sentence was stayed on motion of the defendant on January 8, 1991.

¶9 Kolberg filed a Motion to Allow Filing of Post-Trial Motions After Preparation of Transcript on December 19, 1990. Kolberg then filed a Motion for New Trial on December 20, 1990. On January 8, 1991, the trial court entered an order allowing Kolberg to file his post-trial motions after the preparation of the transcript. The transcript was filed by the court reporter on May 28, 1991. Kolberg filed a 59-page Amended Motion for New Trial on February 4, 1992. The trial court on January 28, 1993, held a hearing on the motion for new trial. The trial court on June 11, 1993, denied the motion for a new trial. Kolberg, aggrieved by the decisions of the lower court, timely filed his Notice of Appeal with this Court on July 19, 1993.

¶10 Kolberg asserts that an error was committed by the lower court that requires this Court to remand for a Batson hearing. The trial judge ignored the holding of Powers v. Ohio 1 by not recognizing that Kolberg had standing to assert a Batson challenge. It was error not to compel the prosecution to give race-neutral reasons for its peremptory challenges. Kolberg also objects to the testimony of Dr. Cartwright as privileged under the psychotherapist patient privilege. The privilege did exist and the lower court erred in allowing this testimony.

¶11 In a case almost identical to the one at bar, we held that the lower court should have granted a manslaughter instruction to the defendant when charged under the same statute under which Kolberg was charged. Butler v. State, 608 So.2d 314 (Miss.1992). Thus, the lower court erred in denying the manslaughter instruction.

¶12 A discovery violation was raised on appeal. Kolberg asserts that the District Attorney violated the rules of discovery when it withheld certain information to which Dr. Vise and Dr. Galvez would later testify. This is a violation of Rule 4.06. The court erred when it failed to recognize this discovery violation and overruled Kolberg's objections and motions for a continuance and mistrial.

Page 1311

¶13 A number of other issues were raised by Kolberg. However, this Court will address only those which require reversal or discussion on the merits.

I. WHETHER THE CASE MUST BE REVERSED AND RENDERED SINCE THE EVIDENCE DOES NOT EXCLUDE THE REASONABLE POSSIBILITY THAT NO CRIME OCCURRED AT ALL IN THIS CASE.

¶14 Kolberg asserts that the State did not produce enough evidence to sufficiently support the verdict of the jury. It is his contention that the State did not prove Kolberg guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.

¶15 The State counters that the proof was sufficient and that any review by this Court must be initiated in all deference to the verdict returned by the jury. The State relies upon Maiben v. State, 405 So.2d 87 (Miss.1981), where we stated that:

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, supra [228 Miss. 687, 89 So.2d 716 (1956)].

Maiben, 405 So.2d at 88 (Miss.1981) (emphasis added). In the case sub judice, the weight of credible evidence supports the jury verdict.

¶16 During its case-in-chief, the State had no less than five different medical personnel testify that the child could not have been injured the way that Kolberg claims she was. James Donald, the nursing supervisor at Hinds General Hospital(Hinds General), testified that the injuries were inconsistent with the defendant's explanation of the injuries. Donald also stated that Kolberg had sole custody the day the injuries were inflicted.

¶17 Dr. Brent Meador was the family physician who saw Madison in the emergency room and at Hinds General. He stated that a fall from a bed could not result in the injury that Madison had sustained and that eventually killed her. Dr. Meador stated that the injuries were inconsistent with a fall onto a floor and that a fall off the bed would not have caused any of Madison's injuries. He testified that the injuries Madison sustained were consistent with falling from about forty feet, being hit with a bat, kicked very hard or possibly from a fist and that this was the type of damage that would occur in a high speed automobile accident. When asked if the massive head trauma could be explained by earlier injuries, the doctor emphatically stated that it could not have been the result of earlier injuries. It was the testimony of Dr. Meador that the injuries were inflicted on August 19, 1988, and at 4:30 p.m. the injuries were three to four hours old.

¶18 Dr. Stone, the emergency room physician, confirmed this point when he testified that the injuries were so severe that Madison could not have sustained significant blows to the head over a several day period. Doctors Meador, Galvez, Vise and Stone all testified that the blows to the back of the head were caused the afternoon Madison was admitted to the hospital, and they were in no way attributable to any accident. Dr. Stone also testified that a fall from a bed would not cause the injuries Madison had. He stated that the defendant's story was totally inconsistent with the injury to the back of Madison's head.

¶19 A neurosurgeon, Dr. Vise, was called into the case. It was his testimony that the injury was most unlikely to result from a fall from a highchair or bed. Dr. Vise stated that after this type injury it would be obvious that the...

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109 practice notes
  • Jackson v. State, No. 98-DR-00708-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 7, 2003
    ...judicata and cannot be relitigated. Miss.Code Ann. § 99-39-21(3). However, Jackson claims that this Court's decision in Kolberg v. State, 704 So.2d 1307 (Miss.1997), is an intervening decision which allows him to raise the claim ¶ 21. In Jackson's direct appeal, this Court, relying on Butle......
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...737 So.2d 275 (Miss. 1999). Smith v. State , 733 So.2d 793 (Miss. 1999). Porter v. State , 732 So.2d 899 (Miss. 1999). Kolberg v. State , 704 So.2d 1307 (Miss. 1997). Snelson v. State , 704 So.2d 452 (Miss. 1997). Fus e lier v. State , 702 So.2d 388 (Miss. 1997). Howard v. State , 701 So.2d......
  • Hutto v. State, NO. 2014-DP-00177-SCT.
    • United States
    • Mississippi Supreme Court
    • May 11, 2017
    ...737 So.2d 275 (Miss. 1999). Smith v. State, 733 So.2d 793 (Miss. 1999). Porter v. State, 732 So.2d 899 (Miss. 1999). Kolberg v. State, 704 So.2d 1307 (Miss. 1997). Snelson v. State, 704 So.2d 452 (Miss. 1997). Fuselier v. State, 702 So.2d 388 (Miss. 1997). Howard v. State, 701 So.2d 274 (Mi......
  • Loden v. State, No. 2002-DP-00282-SCT.
    • United States
    • Mississippi Supreme Court
    • October 4, 2007
    ...737 So.2d 275 (Miss. 1999). Smith v. State, 733 So.2d 793 (Miss. 1999). Porter v. State, 732 So.2d 899 (Miss. 1999). Kolberg v. State, 704 So.2d 1307 (Miss. 1997). Snelson v. State, 704 So.2d 452 (Miss. 1997). 971 So.2d 579 Fuselier v. State, 702 So.2d 388 (Miss. 1997). Howard v. State, 701......
  • Request a trial to view additional results
109 cases
  • Jackson v. State, No. 98-DR-00708-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 7, 2003
    ...judicata and cannot be relitigated. Miss.Code Ann. § 99-39-21(3). However, Jackson claims that this Court's decision in Kolberg v. State, 704 So.2d 1307 (Miss.1997), is an intervening decision which allows him to raise the claim ¶ 21. In Jackson's direct appeal, this Court, relying on Butle......
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...737 So.2d 275 (Miss. 1999). Smith v. State , 733 So.2d 793 (Miss. 1999). Porter v. State , 732 So.2d 899 (Miss. 1999). Kolberg v. State , 704 So.2d 1307 (Miss. 1997). Snelson v. State , 704 So.2d 452 (Miss. 1997). Fus e lier v. State , 702 So.2d 388 (Miss. 1997). Howard v. State , 701 So.2d......
  • Hutto v. State, NO. 2014-DP-00177-SCT.
    • United States
    • Mississippi Supreme Court
    • May 11, 2017
    ...737 So.2d 275 (Miss. 1999). Smith v. State, 733 So.2d 793 (Miss. 1999). Porter v. State, 732 So.2d 899 (Miss. 1999). Kolberg v. State, 704 So.2d 1307 (Miss. 1997). Snelson v. State, 704 So.2d 452 (Miss. 1997). Fuselier v. State, 702 So.2d 388 (Miss. 1997). Howard v. State, 701 So.2d 274 (Mi......
  • Loden v. State, No. 2002-DP-00282-SCT.
    • United States
    • Mississippi Supreme Court
    • October 4, 2007
    ...737 So.2d 275 (Miss. 1999). Smith v. State, 733 So.2d 793 (Miss. 1999). Porter v. State, 732 So.2d 899 (Miss. 1999). Kolberg v. State, 704 So.2d 1307 (Miss. 1997). Snelson v. State, 704 So.2d 452 (Miss. 1997). 971 So.2d 579 Fuselier v. State, 702 So.2d 388 (Miss. 1997). Howard v. State, 701......
  • Request a trial to view additional results

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