Wilkerson v. State

• Decision Date: 24 November 2020
• Docket Number: NO. 2018-CA-01312-COA,2018-CA-01312-COA
• Citation: 307 So.3d 1231
• Parties: Amy WILKERSON a/k/a Amy Danielle Wilkerson, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

307 So.3d 1231

Amy WILKERSON a/k/a Amy Danielle Wilkerson, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CA-01312-COA

Court of Appeals of Mississippi.

November 24, 2020

ATTORNEYS FOR APPELLANT: WILLIAM TUCKER CARRINGTON, CARRIE B. SPERLING

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, CANDICE LEIGH RUCKER, Jackson

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. Amy Wilkerson was charged with capital murder in 2005 after an eight-week-old infant in her care died from injuries consistent with what the doctors termed "shaken-baby syndrome" (SBS).¹ Because Wilkerson had given a statement to police in which she admitted to shaking the infant to wake him, and the defense expert's report confirmed the SBS diagnosis, Wilkerson's attorneys advised her to enter a guilty plea to a reduced charge of depraved heart murder. On May 24, 2007, Wilkerson pled guilty, and the Jackson County Circuit Court sentenced her to serve life in the custody of the Mississippi Department of Corrections (MDOC). Wilkerson filed a motion for post-conviction relief (PCR) in 2010, which the circuit court dismissed. We affirmed the court's decision in Wilkerson v. State , 89 So. 3d 610 (Miss. Ct. App. 2011).

¶2. This appeal originates from Wilkerson's filing a second amended PCR motion on May 26, 2015, in which she asserted that (1) the State concealed from defense counsel material, exculpatory evidence of a previously undisclosed video of her interrogation; (2) shifts of opinion in the scientific community regarding the diagnosis of SBS constituted "newly discovered evidence" that demonstrates her factual innocence; (3) she received ineffective assistance of counsel; and (4) she is actually innocent. Finding her claims procedurally barred, the circuit court denied the motion without an evidentiary hearing. Wilkerson appeals the circuit court's ruling.

¶3. Because we find that Wilkerson has demonstrated unresolved issues of fact, which if resolved in her favor would warrant her relief, we reverse and remand for the circuit court to conduct an evidentiary hearing in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

¶4. On July 18, 2005, while under Wilkerson's care, Tristan Chinn, an eight-week-old infant, became unresponsive and stopped breathing. Wilkerson called 911 and performed CPR on the child while awaiting the ambulance. Once at the hospital, it was determined by the treating physicians that Tristan showed signs of SBS (i.e, subdural hemorrhage

and retinal hemorrhage ).

¶5. The following day, Wilkerson went to the police station for questioning. Detective Ricky Jones read Wilkerson her Miranda rights² and informed her that he was audiotaping their discussion. Wilkerson told the detective that she had been babysitting Tristan for about one month. She said that the child previously had trouble breathing and waking up, but his parents has assured her that this behavior was normal. Wilkerson specifically noted an incident one month prior when the child would not wake up; she called Marty Chinn, Tristan's father, and the following events occurred:

Marty came in and he looked at [Tristan] and he said you know that he must just really be tired and he was doing the trying to wake him up. He had him lay down and he'd take one arm and you know reach it over – like that – and then he'd take the other arm and just reach it. You know just anything to stimulate him you know. And he still didn't wake up.

Upon learning from the detective the extent of the child's injuries and the SBS diagnosis, Wilkerson became very upset and defensive, repeatedly denying that she had harmed the child while he was in her care. Wilkerson conjectured that the child possibly hit his head on a toy attached to his car seat when she picked him up. Wilkerson then told the detective that Tristan had fallen from her couch onto the floor; so she picked him really fast, and that was when he gasped and quit breathing. But Wilkerson consistently reiterated that she loved the child and had "never shaken that baby in a violent manner." Finally, Wilkerson asserted, "I stand by my word. I want a lawyer. That's all I can do." Detective Jones then turned off the audio recorder.

¶6. Yet he continued to talk with Wilkerson off the record for another thirty-two minutes. This conversation was captured on a hidden video, unbeknownst to Wilkerson. During those thirty-two minutes, Wilkerson requested a lawyer two more times, stating "I want a lawyer"; "I quit. I want a lawyer." Detective Jones acknowledged, "I'm really not even supposed to be talking to you anymore. You asked for an attorney—okay—it's not on record." At that point, Wilkerson confessed to him that she "shook [Tristan] to try and get him to wake up." The detective repeated that he was "not even supposed to be talking to [her] right now," but he also suggested that Wilkerson could tell him that she did not want an attorney and that he could "start the tape again."

¶7. Detective Jones told Wilkerson, "There's no jury in the world that's gonna have sympathy for you. It'll go through a jury trial and that's the last thing you want." When Wilkerson replied that she would "need a lawyer regardless" and that an attorney would probably say that she should not have talked to the investigator, Detective Jones responded:

They all say that. ... They get more money if they go to trial. ... And I know what the jury's going to do. Fifteen years minimum. ... Nobody can afford [ ] attorneys. They'll tell you anything. You're right though. You can say I'm sorry I'm not going any further. And I'll say – that's okay Amy, I understand you're scared. And I'll leave the room. But then I can't promise you what I'll do later. I'll be really not happy Amy. And I'll do whatever I have to do to get – cause I'll realize that you weren't prepared to do the right thing. That you have no soul[.]

Before turning the audio recorder back on, Detective Jones warned Wilkerson, "You don't have a choice. I told you earlier it's just me and you in this little small world right now." Wilkerson replied, "Turn [the tape recorder] back on. And hurry up before I change my mind." The investigator turned on the recorder and stated on the record that Wilkerson had asked for an attorney, and he questioned her, "Do you want to talk to me now without your attorney?" Wilkerson replied, "I guess so." Wilkerson then admitted that she shook Tristan to wake him, but referring to the prior incident when Tristan would not wake up, she clarified that she "was just doing what I saw his own father do. And it wasn't anything hard."

¶8. Tragically, Tristan died on July 20, 2005. A Jackson County grand jury indicted Wilkerson for capital murder on March 1, 2006. She initially entered a plea of "not guilty." On May 16, 2006, defense counsel filed a request for discovery, including "a copy of any written or recorded statement of the [d]efendant" and "any exculpatory material concerning the [d]efendant." The State provided defense counsel with two transcripts of the audiotaped interview; the second was a "corrected" copy of the first one. Neither transcript contained the thirty-two minutes of conversation captured on the video. A May 18, 2006 discovery receipt shows that a VHS tape was provided to Wilkerson's attorney. The only record evidence of the content of the VHS tape are affidavits by the district attorney's secretary and office manager, averring that the only VHS tape in the district attorney's file was Wilkerson's video interview with Detective Jones.³ Eight years later, however, one of Wilkerson's attorneys attested that "to the best of [his] recollection[, he] did not receive a video that contained the non-audiotaped portion of Amy Wilkerson's interrogation."

¶9. Prior to trial, defense counsel hired an expert, Dr. Stephen Hayne, to review Tristan's autopsy photographs and medical records. On May 23, 2007, six days before the trial was scheduled to begin, Dr. Hayne provided a short, two-page report, confirming that the child's cause of death was "Shaken/Thrown Baby Syndrome." Upon receiving Dr. Hayne's report, Wilkerson's attorneys advised her to plead guilty to a reduced charge of depraved heart murder.

¶10. The following day, on May 24, 2007, a guilty-plea colloquy was held before the circuit court. The State submitted that it "would show that the child died from what's typically referred to ... as ‘shaken baby’ " and that "the injuries were extensive" and caused the child's death. Wilkerson's defense counsel stated that after reviewing the file and "all the medical records," they felt that it would be in Wilkerson's "best interest to enter a plea to the reduced charge of murder." The circuit court asked Wilkerson, "Did you shake this baby?" She replied, "Yes, sir." The court then asked Wilkerson:

You have indicated to me by your statements that you shook this baby, and on the proof of the State, there is little doubt that, should this matter proceed to trial, it would result in a substantial probability of your conviction. Knowing all of that, do you still desire to enter a plea of guilty?

Wilkerson responded affirmatively and entered a plea of guilty. The circuit court sentenced her to serve life in the custody of the MDOC.

¶11. In May 2010, Wilkerson filed a PCR motion, alleging that her plea was involuntary and that defense counsel rendered ineffective assistance for failing to secure exculpatory witnesses who would testify that Tristan did not die from SBS. Wilkerson also argued that she was not afforded an opportunity at the plea colloquy to explain how she shook the child. The circuit court dismissed the PCR motion, and this Court affirmed the court's decision. Wilkerson , 89 So. 3d at 617 (¶27).⁴

¶12. On January 16, 2015, Wilkerson simultaneously filed a second PCR motion and a motion for leave to amend her PCR motion, requesting time to obtain expert testimony with regard to the SBS diagnosis.⁵ The circuit court granted the motion to amend. She...