Payton v. State, 91-KA-00677
|08 September 1994
|Sylvia Hortense PAYTON v. STATE of Mississippi.
|Mississippi Supreme Court
Mack A. Bethea, Gulfport, for appellant.
Michael C. Moore, Atty. Gen. and Jean Smith Vaughan, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and BANKS and SMITH, JJ.
SMITH, Justice, for the Court:
Sylvia Hortense Payton appeals from her conviction in the Circuit Court of Harrison County on charges of felony child abuse. Before this Court Payton presents seven assignments of error, the majority of which are clearly without merit. We address two issues:
A. THE COURT ERRED IN FAILING TO GRANT THE APPELLANT'S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE, OR IN FAILING TO GRANT THE MOTION FOR A DIRECTED VERDICT WHICH WAS RENEWED AT THE CLOSE OF THE CASE AND RAISED BY JURY INSTRUCTION D-1, WHICH WAS A REQUESTED PREEMPTORY [sic] INSTRUCTION, BECAUSE NO EVIDENCE WAS BEFORE THE COURT THAT THE DEFENDANT FELONIOUSLY ABUSED A CHILD, SAID EVIDENCE REQUIRED UNDER MISS.CODE ANNOTATED, SECTION 97-5-39(2), CODE OF 1972.
B. THE LOWER COURT ERRED IN NOT ALLOWING JURY INSTRUCTIONS D-4 AND D-5, LESSER INCLUDED OFFENSE INSTRUCTIONS, CONCERNING MISDEMEANOR CHILD ABUSE UNDER 97-5-39(1) AND IN DENYING THE DEFENDANT THE OPPORTUNITY TO OFFER AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT AS DEFINED IN MISS.CODE ANNOTATED, SECTION 97-3-7(1).
Upon careful consideration we find no reversible error exists and therefore affirm the conviction and sentence of Payton to fifteen (15) years in the custody of the Mississippi Department of Corrections, with five (5) years suspended.
On October 2, 1989, Richard Chapman, a lieutenant paramedic with the Gulfport Fire Department, was dispatched to the Gulf Mist Apartment complex in response to a call of a child bleeding and possible poisoning. The paramedics found Sylvia Payton standing outside, holding her crying baby. She told them the baby had swallowed glass.
Payton told the paramedics she had fed her and there was glass in the formula. She said the baby had been vomiting and passing blood. An examination indicated there was fresh blood coming from the rectum. Chapman stated Payton produced a plate of formula and a baby bottle, both of which contained visible shards of glass. Chapman stated the child otherwise appeared to be a "normal healthy child."
Detectives Eric Hollman and Stanley Vance, investigators with the Gulfport Police Department, were also dispatched to the Payton residence. Hollman spoke with Payton, who informed him she had bought the baby food the previous Friday and opened it on Sunday. Payton did not indicate how the glass got into the baby food. Vance stated that after the baby was taken to the hospital, an investigation began because it was thought a food tampering may have occurred. The FDA was contacted. No cereal boxes matching the lot number of the box Payton had were found at the stores closest to Payton's apartment.
The search was expanded and one matching box was found at the Sack and Save on Pass Road. Upon a search of Payton's apartment, another officer, Cook, found a broken window in a bedroom and fresh glass fragments on the window sill and carpet below. In another bedroom the officers discovered a meat mallet on top of a dresser. There were glass fragments on the dresser and "little indentations" which "looked like the meat tenderizer was used to beat on top of the dresser." Upon closer examination, the meat mallet was also found to have glass fragments stuck in it.
Dr. Philip J. Starceski testified he was a pediatrics resident who saw the baby, Veouis Nicole Payton, upon her admission to the hospital at Keesler Air Force Base on October 2, 1989. Dr. Starceski received the infant's history from the emergency room noting that the child had blood streaked vomit and a dark bowel movement. The mother had noted glass fragments in the baby's cereal and was concerned that the cause of the blood was due to swallowing glass.
A physical examination revealed the following: the palate, or roof of the mouth was scratched, but the back of the throat was normal; there was no visible blood within the stomach contents, but a chemical analysis showed very faint traces of blood in the stomach; the stool was "strongly positive" for blood; and a rectal exam indicated a tiny tear, but no blood, in the outer area. The baby's blood pressure was also high, but this was considered normal for this infant because she was treated previously for high blood pressure.
Laboratory tests on the stool for blood ranged from "one plus" to "four plus." No glass fragments were visually detected in the stool samples. Dr. Starceski opined that the scratches on the palate were in a position consistent with those of a baby drinking liquid through a nipple that contained glass. Dr. Starceski was of the opinion that "with the history of having ingested glass fragments," it was most probable that the abrasions on the palate were due to glass fragments.
Dr. Starceski stated the baby had been treated previously for blood in the stool, but scratches of the palate had not been observed. During a previous hospitalization in August 1989, for blood-streaked vomit and stool, the baby was diagnosed with a prolapse of part of the stomach into the esophagus.
Detective Jeffrey Michel first interviewed Payton at the hospital on October 2. Payton told him she purchased the baby food in question at the Sav-A-Center on September 29, and fed it to the baby beginning on October 1. Payton stated on October 2 she spilled the food and, while cleaning it up, noticed it had glass particles in it.
In interviewing Payton, Michel began to notice inconsistencies in Payton's version of the incident. Detective Payne asked Payton The other officers returned and Payton explained that on the 29th she received a call from her boyfriend, Terry Page, who was stationed with the Navy in Virginia. Page told Payton he was seeing another woman and she was pregnant. Michel stated Payton was "very upset" about this, really mad at Page and "wanted some way to get him down here so she could talk to him in person." Payton thought she could do this through the Red Cross for some type of medical emergency. She took vise grips and broke up some glass in her bedroom, took a meat cleaver and broke it up more, then placed several particles in the baby food and a "pinch" in the bottle. Payton stated she fed this to the baby on Sunday morning and night. She then purposely spilled the cereal and reported it to the police.
whether she had observed a black male, wearing a black trench coat, who walked with a limp and had a gold tooth in the aisle near the baby food when she purchased the cereal. After Payton stated she had observed this person, she was advised of her Miranda rights. Michel stated the other officers stepped outside the room at one point and he "leaned over and said, Ms. Payton, why don't you go ahead and tell us the truth on how the glass got into the baby box," and Payton stopped crying and "just said okay, I put the glass in the box."
Chief Investigator Wayne Payne stated he had made up the description of a black man in the baby food aisle of the Sav-A-Center, whom Payton agreed she had seen when purchasing the baby food. Payne stated officers found neither vise grips nor a towel at Payton's apartment. No one told Payton if she would tell the officers what they wanted to hear, she could go home.
Terry Page, the baby's father, was not aware of any problems with the baby's digestive tract but had been contacted by the Red Cross and came back to Gulfport in August 1989 when the baby was hospitalized. Page stated when he called Payton a few days before the incident, they had discussed his seeing another woman, who might be pregnant. Page stated he told Payton, "Well, I might have to cut Veouis' money off." But he then told her he "would never do that to my little girl." Page stated Payton did not seem upset about the other woman, and that the two had talked about the other woman before.
Mrs. Osie Payton, Sylvia Payton's mother, testified that Sylvia instructed her not to feed the baby any cereal during an overnight visit the weekend prior to the incident. Mrs. Payton specifically recalled that it was she who told her daughter not to feed the baby any cereal, but only juice instead.
Sylvia Payton testified that on October 30, she borrowed a neighbor's vacuum cleaner to clean for an upcoming inspection. Afterwards, she emptied the vacuum bag into a plastic container and set it on her kitchen counter. She noticed she had picked up "large chunks" of glass from the back bedroom, which she had not seen while vacuuming. She threw the container of vacuumed contents into the dumpster and began preparing a baby bag for her daughter. Payton stated: "I got ready to pack her bag and I reached for her cereal on the top of the counter, and as I was reaching it tipped over and it all come spilling on the counter top." She then "raked it back in the box," and put the box in the baby bag.
Payton testified that she did not prepare any bottles with this box of cereal which had been spilled. She further stated that when she went to her mother's home that same evening for an overnight visit, she instructed her mother not to feed the baby any cereal at all.
Payton stated that she returned home from her mother's house on October 2 and that it was then that she first noticed the glass fragments in the cereal as she prepared to feed the baby. She and a neighbor examined the cereal and decided to call paramedics. According to Payton, she later spoke with the emergency room attendants and told them
At the police station she answered a lot of...
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