Robert E. Bernardini v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-00268-COA
ROBERT EUGENE BERNARDINI
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
1/28/2003
HON. GEORGE B. READY
DESOTO COUNTY CIRCUIT COURT
DAVID CLAY VANDERBURG
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS AND DEIRDRE
MCCRORY
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF CAPITAL MURDER AND
SENTENCED TO SERVE A TERM OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 04/27/04
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
Robert Bernardini was convicted of capital murder in the death of his nineteen month old
stepdaughter, Rachel Mackenzie Scruggs. He has appealed that conviction and asserts two grounds upon
which he urges this Court to overturn his conviction. First, he contends that the trial court erred in failing
to suppress an incriminating statement that he gave to investigating officers at a time when he was in
custody. Secondly, he claims that he was denied a fundamentally fair trial asserting that (a) the prosecutor’s
summation amounted to a constitutionally-impermissible comment concerning his constitutional right to
remain silent as to the charges made against him, and (b) the prosecutor’s summation was based upon facts
not in evidence.
¶2.
We find these issues to be without merit and affirm the conviction.
I.
Facts
¶3.
Bernardini’s stepdaughter died of trauma injuries suffered while she was in the sole care of
Bernardini. Bernardini sought to explain the trauma as consisting of injuries received when the child fell
from a chair while Bernardini was tending to a second child in another room in the home. The State
presented expert testimony regarding the extent of the child’s injuries and evidence tending to show that
the injuries were not consistent with a simple fall. Bernardini was indicted for capital murder with felony
child abuse being the underlying felony. He was convicted and sentenced to life in prison.
II.
Suppression of Statement
¶4.
After Bernardini was taken into custody as a suspect in the child’s death, he gave a statement to
investigating officers. Prior to trial, counsel for the defendant sought to have the statement suppressed as
being an involuntary statement made as a result of coercive tactics by the interrogating officer. The trial
court declined to suppress the statement. Despite this finding that the statement was admissible, the
prosecution did not attempt to offer it into evidence during its case in chief. Bernardini, however, did not
take the stand in his own defense after the State rested, and he asserts in this appeal that he did not do so
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because of apprehension that the prosecution would use the inadmissible statement to impeach him on
cross-examination.
¶5.
Bernardini cites the Court to no authority for the proposition that the mere fear that a previously-
unintroduced statement might be used in cross-examination works to deny him a fundamentally fair trial by
intimidating him from taking the stand in his own defense. In a somewhat related circumstance, there is at
least the possibility that a trial court’s erroneous decision that a prior conviction may be used to impeach
a testifying defendant may serve as such a deterrent that it will be seen as reversible error because of the
chilling effect that ruling has on the defendant’s decision to testify. Heidelberg v. State, 584 So. 2d 393,
395 (Miss. 1991). However, the issue of a previously-made incriminating statement presents a different
question. In the matter of a prior conviction, the defendant may unequivocally keep that evidence from the
jury by not taking the stand since the conviction is admissible only for purposes of impeaching the
defendant’s credibility under Mississippi Rule of Evidence 609(a). On the other hand, once the trial court
rules that a custodial statement is admissible, the State has the opportunity to offer it into evidence without
regard to whether the defendant takes the stand. In this case, the State, for reasons that do not appear in
the record, elected not to offer the statement into evidence. It is purely speculative to suggest that the State
would have attempted to belatedly offer the statement after ending its case in chief and then only if the
defendant, Bernardini, took the stand in his own defense. Thus, because the trial court determined the
statement to be admissible as bearing directly on the central issue of the defendant’s guilt rather than for
some alternate and limited purpose such as witness impeachment, the court’s ruling cannot be seen as
having any chilling effect on Bernardini in deciding whether or not he should take the stand in his own
defense. This issue is without merit.
III.
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Summation
¶6.
During summation, the prosecuting attorney made reference to evidence that the child’s face bore
a bruise resembling the general shape of a human hand, indicating that the child had received a violent openhanded blow before her death. The attorney suggested to the jury that this fact, coupled with the
uncontradicted evidence that Bernardini had sought assistance for the child, indicated that he had lost his
temper and inflicted a terminal injury on the child before recovering his sensibilities enough to realize that
he had made a tragic error in judgment.
¶7.
Without citing any authority, Bernardini contends that this was an impermissible comment on his
failure to testify – apparently based on the contention that, if there were a better explanation of what had
transpired, then Bernardini, being the only one who could relate that alternate version to the jury, would
certainly have been expected to do so. We do not find that contention persuasive. There was no direct
assertion that the defendant should have testified. The question, then, becomes whether the statement
crossed the line that prohibits the prosecution from “referring by innuendo and insinuation to the defendant’s
failure to testify.” Ladner v. State, 584 So. 2d 743, 754 (1991). The argument was a fairly straightforward analysis of the available evidence and invited the jury to draw what seems an entirely reasonable
inference from that evidence. It was unaccompanied by any comment along the lines of “. . . and you have
not heard any evidence to the contrary . . . ,” which the Mississippi Supreme Court has found prejudicial
in those circumstances where it is evident that the defendant is the only person who could supply such
contradictory proof. Jones v. State, 669 So. 2d 1383, 1390 (Miss. 1995). We find this contention,
therefore, to be without merit.
¶8.
Alternatively, Bernardini asserts that the claim that he lost his temper was improper summation.
This argument begins with the correct premise that final argument must be limited to analysis of the evidence
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actually presented at trial. Watts v. State, 828 So. 2d 835, 840 (¶9) (Miss. Ct. App. 2000). It then
proceeds to Bernardini’s contention that there was no testimony that he had lost his temper with the
deceased child and the State was, therefore, arguing facts not in evidence. As we previously observed,
the jury sitting as the finder of fact in a criminal trial is entitled to draw reasonable inferences from the
evidence in reaching its decision. Pryor v. State, 771 So. 2d 958, 960-61 (¶9) (Miss. Ct. App. 2000).
The suggestion that the proof, showing beyond question that this child, prior to her death, received a violent
open-handed blow to the face would support an inference that some adult with access to the child was
acting out of extreme anger seems an entirely appropriate comment on the evidence and those reasonable
inferences supported by the evidence that would aid the jury in arriving at a conclusion as to exactly what
transpired in the time leading up to this victim’s death. We do not find this to constitute reversible error.
¶9.
THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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