Wells v. State, 2004-KA-00296-COA.
| Decision Date | 25 October 2005 |
| Docket Number | No. 2004-KA-00296-COA.,2004-KA-00296-COA. |
| Citation | 913 So.2d 1053 |
| Parties | Matthew WELLS a/k/a Matthew Earl Wells, Jr., Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Supreme Court |
George S. Shaddock, Pascagoula, attorney for appellant.
Office of the Attorney General by W. Glenn Watts, attorney for appellee.
Before KING, C.J., IRVING and GRIFFIS, JJ.
KING, C.J., for the Court.
¶ 1. Matthew Wells was convicted by a jury in the Circuit Court of Jackson County of felony child abuse. Wells was sentenced to a term of fifteen (15) years, with seven (7) years suspended, and eight (8) years to be served, in the custody of Mississippi Department of Corrections. Aggrieved by the conviction, Wells has appealed and asserts the following issues, which we quote verbatim.
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. The defendant Wells shared a residence with his girlfriend, Samantha Dunbar, and her two-year old twin sons, Tevin and Devin. Wells worked until 1:00 a.m.; Dunbar worked the morning shift from 4:00 a.m. to 9:00 a.m. While Samantha Dunbar worked, the boys were in the primary care of Wells between the hours of 4:00 a.m. until 9:00 a.m. On November 3, 2000, at approximately 9:00 a.m, Dunbar arrived home from work and discovered Wells running upstairs attempting to seek medical assistance for Tevin. According to Dunbar, she ran behind Wells and found Tevin lying on the bed with "foam coming from his mouth." With the aid of others, Dunbar transported Tevin to the hospital. At the hospital, it was determined that Tevin had sustained injuries to his head and was in a comatose state. The evidence established that Tevin had sustained retinal bleeding and neurological damage. As a result of the neurological damage, Tevin is unable to walk without assistance.
¶ 4. Given the nature of the injuries, the hospital contacted the Department of Human Services, which contacted the Gautier Police Department. On November 10, 2000, the Gautier Police Department conducted an interview with Wells. This interview was not recorded. On November 30, 2000, Wells voluntarily came to the police station, where from 10:21 a.m. until 11:43 a.m., Officers Cherie Riendeau and Dale Robinson conducted a second interview with him. According to Officer Riendeau, during the November 30, 2000 interview, Wells confessed to "jerking" Tevin and causing the injury. Officer Riendeau testified that although only twenty five minutes of the interview were recorded on video, she took notes prior to starting the video recorder. Riendeau's notes were unavailable. However, she stated that the information contained in those notes had been included in a police report.
¶ 5. During Wells' testimony, he denied having confessed to injuring Tevin. Wells maintained that he was bouncing the children on the bed, when Tevin accidently fell off the bed and hit his head on the floor.
ISSUES AND ANALYSIS
Whether the trial court erred in failing to sustain the Defendant's objections to hypothetical questions addressed to the State's expert, said questions assuming matters not in evidence, nor the opinions disclosed in discovery.
¶ 6. Dr. Theodore "Teddy" Millette testified as a prosecution witness and was accepted by the defense as an expert in the field of pediatric medicine. On the morning of the injury, Dr. Millette was called to the emergency room to evaluate Tevin. During the evaluation, Dr. Millette discovered that Tevin was "having a seizure and had what's called a blown pupil." On the following day, Dr. Millette attempted several times to see if Tevin could function without life support; however, Tevin was unable to breathe normally. Dr. Millette testified that he was "very suspicious that there might be something more than a simple seizure causing the problem." After further tests, he discovered that there was blood behind Tevin's eyes, which was "indicative of head trauma . . . or a head injury of some sort." During its direct examination of Dr. Millette, the prosecution posed hypothetical questions to him regarding the causation of Tevin's injuries. In response to the question of whether Tevin's injuries were accidental or non-accidental, Dr. Millette stated that "whenever you have retinal hemorrhages and a hemorrhage in the brain at the same time, it's, with very few exceptions, anything but a non-accidental injury." Wells asks this Court to hold that the admission of Dr. Millette's testimony based on these hypothetical questions was error.
¶ 7. Under Rule 702 of the Mississippi Rules of Evidence, expert testimony is admissible, if it will aid the trier of fact in understanding the evidence. In circumstances where the expert testimony is helpful, the expert's testimony may be based upon personal observations, or upon hypothetical questions. M.R.E. 703 cmt. The admission or exclusion of expert testimony is within the trial court's discretion and this Court will not disturb the trial court's decision unless the trial court clearly abused that discretion. Sheffield v. Goodwin, 740 So.2d 854, 856 (¶ 6) (Miss.1999). The Mississippi Supreme Court has held that "[t]he interrogator may frame his question on any theory which can reasonably be deduced from the evidence and select as a predicate therefor such facts as the evidence proves or reasonably tends to establish or justify." Chapman v. Carlson, 240 So.2d 263, 268 (Miss.1970) (quoting 31 Am.Jur.2d Expert and Opinion Evidence Section 56 (1967)). When the facts are in dispute the hypothetical question may be stated in terms consistent with the theory of the interrogator. Strickland v. M.H. McMath Gin Inc., 457 So.2d 925, 928 (Miss.1984). The interrogator cannot, however, assume facts unsupported by any evidence. Id. Whether or not sufficient evidence is present to support the hypothetical question presented to the expert is a question of law for this Court to determine. Id.
¶ 8. Dr. Millette testified that Tevin arrived at the hospital suffering from seizures. The next day after repeated CAT scans, he discovered that Tevin had severe retinal bleeding. He stated that such bleeding indicated head trauma. When asked a hypothetical question about the cause of the injury Dr. Gillette replied,
¶ 9. We hold that sufficient evidence was present to support the hypothetical questions presented to Dr. Millette, as an expert in the field of pediatric medicine. Dr. Millette conducted an actual evaluation of Tevin, and based upon his training in pediatric medicine made certain diagnoses regarding Tevin. Based upon his expertise in the field of pediatric medicine and his evaluation of Tevin, Dr. Millette was asked to give an opinion as to whether the injuries which he had observed were accidental or non-accidental. Such an opinion is consistent with M.R.E. 702. Dr. Millette's opinion (1) was based upon his medical evaluation of Tevin, (2) was the product of reliable principles and methods of medicine, and (3) those principles and methods were reliably applied to the facts of this case.
¶ 10. We find no merit to this issue.
Whether the trial court erred in not granting a mistrial upon the submission of opinion testimony of State's witness, Cherie Riendeau.
¶ 11. Our review of the trial court's decision whether to grant a mistrial is subject to an abuse of discretion standard. Horne v. State, 487 So.2d 213, 214-15 (Miss.1986). The appellate courts of this State have unequivocally held that the trial judge is in the best position to determine the prejudicial effect of an objectionable remark. Alexander v. State, 520 So.2d 127, 131 (Miss.1988). He is therefore afforded considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. "Where `serious and irreparable damage' has not resulted, the judge should `admonish the jury then and there to disregard the improp[riety].'" Roundtree v. State, 568 So.2d 1173, 1177-78 (Miss.1990) (quoting Johnson v. State, 477 So.2d 196, 210 (Miss.1985)).
¶ 12. Wells contends that Officer Riendeau's statement that "this was not an accident" warranted the granting of a mistrial. The trial court sustained the objection to the officer's statement and admonished the jury to "disregard the statement by this particular witness." The Court further inquired, Out of the presence of the jury, Wells moved for a mistrial based on Officer Riendeau's statement that "this was not an accident." The trial court denied the motion.
¶ 13. The rule is well established in the...
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