Toby Lee Henry v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01648-COA
TOBY LEE HENRY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
08/28/2008
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
WILLIAM PAUL STARKS II
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF FELONY CHILD ABUSE
AND SENTENCED TO TWENTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH
FIVE YEARS OF POST-RELEASE
SUPERVISION
AFFIRMED: 02/09/2010
BEFORE MYERS, P.J., GRIFFIS AND CARLTON, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Toby Lee Henry appeals his conviction of felony child abuse in violation of
Mississippi Code Annotated section 97-5-39(2)(a) (Rev. 2006). He claims that: (1) he was
denied his constitutional right to counsel; (2) he was denied effective assistance of counsel;
and (3) the current interpretation of the felony child-abuse statute violates his right to due
process. We find no reversible error and affirm.
FACTS
¶2.
On February 25, 2007, Melissa 1 went to the home of her granddaughter, Sarah, and
Henry, who was Sarah’s live-in-boyfriend at the time,2 to visit her two-year-old greatgrandson, Jonathan. Henry is not Jonathan’s biological father. When Melissa arrived, she
noticed a big bump on Jonathan’s head. Melissa took Sarah to work and took Jonathan to
her house for the afternoon. While Melissa was helping Jonathan use the bathroom, she
noticed bruising on his buttocks and legs.
¶3.
Melissa took Jonathan to the emergency room. X-rays were performed, but Jonathan
had no broken bones. Dr. Keith McCoy testified regarding his examination of Jonathan at
the emergency room. Dr. McCoy found multiple contusions, or bruising, of the skin. He
stated that the bruise on Jonathan’s head was typical of children that age because toddlers
often fall head-first due to the weight of their heads.
¶4.
Dr. McCoy found contusions on both of Jonathan’s upper arms. Each arm had four
circular bruises consistent with someone grabbing the arm with strong force. There were also
bruises on Jonathan’s hips and buttocks. Dr. McCoy testified that these bruises were also
caused by strong force. He further stated that the degree of bruising and the large area of
bruising on Jonathan’s body were not typical.
¶5.
Dr. McCoy also found a bite mark on Jonathan’s inner thigh caused by strong force
1
The names of the parties other than the defendant have been changed to protect
the identity of the minor child.
2
Henry and Sarah were married sometime following this incident.
2
that would have caused discomfort and distress to Jonathan. Dr. McCoy testified that
Jonathan’s injuries could not be reconciled with child discipline. He concluded that the
injuries caused temporary disfigurement of an organ – Jonathan’s skin.
¶6.
Deputy Mark Miley of the Lowndes County Sheriff’s Department was called to the
hospital. He took several pictures of Jonathan’s injuries for use in the investigation.
Lieutenant Greg Wright arrived later to begin the investigation. He interviewed Henry and
Sarah at the sheriff’s department. Henry signed a Miranda waiver and gave a written
statement.
¶7.
Henry’s statement said that Jonathan hit the couple’s six-week-old baby in the face.
Henry grabbed Jonathan by the diaper, pulled the diaper off, and put Jonathan in his lap. He
said he spanked Jonathan with his hand two to three times. He admitted that he was upset
while he was spanking Jonathan. He further admitted that he bit Jonathan on another
occasion, but he said that the bite was done while playing and that Jonathan did not indicate
that it caused him any pain.
¶8.
Henry was indicted for felony child abuse, and he was appointed a public defender
by the circuit court. Following a continuance of the trial, Henry retained Joseph O. Sams,
Jr., as trial counsel who was substituted for the public defender. On December 7, 2007, the
circuit court entered an order continuing the trial because Sams was ill. The trial was
continued again because Sams’s phone line was disconnected and the State was unable to
reach him regarding the case.
¶9.
The trial began on August 27, 2008, and the jury found Henry guilty as charged.
Henry was sentenced to serve twenty years in the custody of the Mississippi Department of
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Corrections followed by five years of post-release supervision. Henry’s motion for a
judgment notwithstanding the verdict or, alternatively, a new trial was denied.
ANALYSIS
1.
¶10.
Whether Henry was denied his constitutional right to counsel because
his trial counsel took inactive status with The Mississippi Bar before
Henry’s trial.
Henry claims that his representation by Sams, an inactive member of The Mississippi
Bar, deprived him of his right to counsel. The State responds that Sams’s administrative
status with The Mississippi Bar is insufficient to violate Henry’s right to counsel.
¶11.
Henry’s trial began on August 28, 2008; however, Sams’s status with The Mississippi
Bar changed from active to inactive on August 1, 2008. Henry claims that he was unaware
of this status change. There is no indication in the record as to why Sams took inactive
status.
¶12.
Henry correctly asserts that an inactive member of The Mississippi Bar is not
authorized to practice law in this state, citing Mississippi Code Annotated section 73-3-120
(Rev. 2008) which states, in pertinent part, that:
(a) “Active member” means any person admitted to practice law in this state
and who is engaged in the practice of law in this state. Except as otherwise
provided in Section 73-3-125, all active members shall be entitled to vote and
hold office in the bar.
(b) “Inactive member” means any member, in good standing, who is not
engaged in the practice of law in this state. A person may, upon written
request, be enrolled as an inactive member. Inactive members shall not be
entitled to vote and hold office in the bar.
There is no question that Sams was engaged in the practice of law during his representation
of Henry. However, we find that Sams’s recent status change with The Mississippi Bar was
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harmless error as it relates to the jury’s verdict in this case.
¶13.
The supreme court has held that:
The basic test for harmless error in the federal constitutional realm . . . is
whether it appears beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained. . . . [T]he inquiry is not whether the jury
considered the improper evidence or law at all, but rather, whether that error
was unimportant in relation to everything else the jury considered on the issue
in question, as revealed in the record.
Thomas v. State, 711 So. 2d 867, 872-73 (¶25) (Miss. 1998) (internal citations and quotations
omitted). Everyone involved in these proceedings, including the jury, was unaware of
Sams’s inactive status. Henry does not assert any effect Sams’s status had on the jury’s
finding of guilt.
¶14.
Further, “[t]o warrant reversal on an issue, two elements must be shown: error, and
injury to the party appealing.” Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d
216, 221 (Miss. 1969) (quoting 5 Am. Jur. 2d Appeal and Error § 776 (1962)). Henry has
not shown this Court how he was prejudiced by Sams’s inactive status. The closest argument
to any type of prejudice is Henry’s assertion that inactive members “are not subject to the
same requirements for maintaining their legal acumen and continuing education.” However,
this argument fails to show prejudice to Henry because Sams had been an inactive member
for less than one month – clearly an insufficient period of time to claim that Sams’s
continuing education was lacking.
¶15.
We find that Sams’s inactive status with The Mississippi Bar constitutes harmless
error because Henry fails to show any prejudice as a result of Sams’s status and because such
status had no effect on the jury’s determination of guilt. Accordingly, this assignment of
5
error does not warrant reversal.
2.
¶16.
Whether Henry was denied effective assistance of counsel.
Henry asserts that, in addition to being an inactive member of the bar, Sams’s overall
performance during his representation of Henry constitutes ineffective assistance of counsel.
Specifically, he claims that Sams was ineffective due to his: (1) lack of preparation of a
defense, (2) failure to advise Henry of the correct maximum penalty for felony child abuse,
(3) failure to request a new jury venire or a mistrial, (4) physical infirmities during trial, (5)
failure to prepare an argument for the Peterson hearing, and (6) failure to object to improper
prosecutorial comments in the State’s closing argument.
¶17.
To prove ineffective assistance of counsel, Henry must show that: (1) his counsel’s
performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The burden of proof rests with Henry to show both
prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Under Strickland, there is
a strong presumption that counsel’s performance falls within the range of reasonable
professional assistance. Strickland, 466 U.S. at 689. To overcome this presumption, “[t]he
defendant must show that there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
¶18.
Furthermore, the merits of an ineffective-assistance-of-counsel claim on direct appeal
should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the
appellate court to make the finding without consideration of the findings of fact of the trial
judge.” Colenburg v. State, 735 So. 2d 1099, 1101 (¶5) (Miss. Ct. App. 1999). If this Court
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does not reverse on other grounds and is unable to conclude that the defendant received
ineffective assistance of counsel, it should affirm “without prejudice to the defendant's right
to raise the ineffective assistance of counsel issue via appropriate post-conviction
proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is
confined strictly to the record. Id. at 1102 (¶6).
A.
¶19.
Preparation of a Defense
Henry contends that Sams did not prepare a proper defense because Sams made
certain assertions during opening statements that were not proven by the evidence presented
at trial. First, Sams stated that Henry was incarcerated on the date that the indictment alleged
he committed the crime of felony child abuse; therefore, Henry could not be convicted under
the indictment. Second, Sams suggested that the bite mark on Jonathan’s leg was caused by
the neighbor’s child. Both of these assertions were disproved by the evidence at trial –
Deputy Miley testified that Henry was not incarcerated on the date listed in the indictment,
and Henry’s statement given at the sheriff’s department admitted that he, not the neighbor’s
child, bit Jonathan’s leg.
¶20.
It is unclear from the record before us that these assertions amount to Sams’s lack of
preparation of a defense as Henry now claims. “Opening statements are part of trial
strategy.” Carroll v. State, 755 So. 2d 483, 488 (¶17) (Miss. Ct. App. 1999) (citing Eakes
v. State, 665 So. 2d 852, 873 (Miss. 1995)). Further, Henry has not proven that the outcome
of the trial was prejudiced by these comments, especially in light of the overwhelming weight
of evidence against him, including Henry’s own statement admitting that he spanked and bit
Jonathan coupled with eyewitness and medical testimony regarding the severity of Jonathan’s
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injuries.
B.
¶21.
Failure to Advise Henry of the Correct Maximum Penalty for
Felony Child Abuse
Henry claims that Sams incorrectly informed him that the maximum penalty for felony
child abuse was twenty years instead of the correct maximum sentence which is life in
prison. See Miss. Code Ann. § 97-5-39(2)(a) (setting the sentence for felony child abuse at
“life or such lesser term of imprisonment as the court may determine but not less than ten
(10) years”). He offers no proof of this assertion. In his brief, he quotes Sams’s statement
during voir dire in which Sams compared himself to Henry, stating: “But fortunately, I’m not
standing here worried about going away for 20 years of my life.” This statement was made
to the jury, not in the context of informing Henry of the maximum sentence. Further, the
statement does not say that twenty years is the maximum penalty for felony child abuse. It
merely suggested to the jury the possibility that Henry could go to prison for twenty years;
such possibility was completely valid under the statute.
C.
¶22.
Failure to Request a New Jury Venire or a Mistrial
At the conclusion of a brief recess during voir dire, Henry entered the courtroom
carrying a small child. The circuit court reprimanded Henry and told Sams to take his client
and the child out of the courtroom. The circuit court told Sams, “you know better.” The
State then asked the jury venire whether the “spectacle of this defendant bringing a baby into
the courtroom” had affected their judgment in the case. Several jurors raised their hands and
were struck from the jury venire.
¶23.
Henry claims that this clearly shows that the jury venire was tainted because of the
8
possibility that some jurors were affected but failed to respond to the State’s question.
Again, the record does not affirmatively prove this assertion. We cannot assume that certain
jurors failed to respond to a direct question during voir dire. Furthermore, there is no
evidence that Sams orchestrated this situation. It is entirely possible that Henry himself,
independent of any direction from Sams, decided to bring the baby into the courtroom.
D.
¶24.
Physical Infirmities During Trial
Henry cites to certain portions of the transcript where Sams requested to sit instead
of stand while questioning a witness. He claims that this proves that Sams was physically
infirm and lacked the stamina required to represent a criminal defendant. There is no
evidence in the record to show that Sams’s need to sit instead of stand prejudiced Henry’s
defense in any way.
E.
¶25.
Failure to Prepare an Argument for the Peterson Hearing
Henry had a prior conviction in 2002 for accessory after the fact to burglary. The
circuit court conducted a Peterson hearing after the State expressed its wish to use the
conviction for impeachment purposes should Henry take the stand. The State argued that
burglary had some impeachment value. Sams chose not to argue in opposition, and the
circuit court ruled that the conviction was admissible for impeachment purposes.
¶26.
Henry contends that this is proof of Sams’s failure to prepare for the hearing.
However, the record is insufficient to support that claim. Counsel’s choice of whether or not
to argue a motion falls within such counsel’s trial strategy. It is possible that Henry had
already made the decision that he would not testify. If so, Sams’s argument in the Peterson
hearing would be unnecessary. The record on appeal is insufficient to support this assertion
9
of ineffective assistance.
F.
¶27.
Failure to Object to Improper Prosecutorial Comments in the
State’s Closing Argument
The prosecutor made the following comments during closing argument:
And, Ladies and Gentlemen, you’re told that there’s no evidence of any
serious bodily injury. That’s outrageous. I don’t know what’s happened to
America. I don’t know what’s happened to the America I knew. We’ve lost
our sense of outrage. If those pictures don’t outrage you, if those pictures
don’t stick in your throat, there’s something fundamentally wrong with you.
Henry claims that Sams’s failure to object to this “send-a-message” argument amounts to
ineffective assistance. However, “[c]ounsel's choice of whether or not to file certain motions,
call certain witnesses, ask certain questions, or make certain objections fall within the ambit
of trial strategy.” Scott v. State, 742 So. 2d 1190, 1196 (¶14) (Miss. Ct. App. 1999). Sams
most likely wished to avoid drawing further attention to the photographs referenced by the
prosecutor that depicted the severity of Jonathan’s injuries.
¶28.
We find that the record before us on appeal is insufficient to affirmatively show
ineffective assistance of counsel of constitutional dimensions. As such, we deny relief on
this issue without prejudice so that Henry may present an ineffective-assistance-of-counsel
claim in a motion for post-conviction collateral relief.
3.
¶29.
Whether the current interpretation of the felony child-abuse statute
violates Henry’s right to due process.
Henry argues that the supreme court’s interpretation of the phrase “serious bodily
harm” found in the felony child-abuse statute violates the Rule of Lenity and the Whole Act
Rule. Specifically, he claims that if temporary disfigurement of an organ, i.e., bruising of the
skin, constitutes serious bodily harm, there is no clear distinction between felony child abuse
10
and misdemeanor child abuse. The State responds that there is sufficient evidence to show
that Jonathan’s injuries were severe enough to establish felony child abuse.
¶30.
Mississippi Code Annotated section 97-5-39(2)(a) governing felony child abuse states
the following:
Any person who shall intentionally (i) burn any child, (ii) torture any child or,
(iii) except in self-defense or in order to prevent bodily harm to a third party,
whip, strike or otherwise abuse or mutilate any child in such a manner as to
cause serious bodily harm, shall be guilty of felonious abuse of a child and,
upon conviction, shall be sentenced to imprisonment in the custody of the
Department of Corrections for life or such lesser term of imprisonment as the
court may determine, but not less than ten (10) years. For any second or
subsequent conviction under this subsection, the person shall be sentenced to
imprisonment for life.
(Emphasis added).
¶31.
Mississippi Code Annotated section 97-5-39(1)(a) governing misdemeanor child
abuse states the following, in pertinent part:
Except as otherwise provided in this section, any parent, guardian or other
person who willfully commits any act or omits the performance of any duty,
which act or omission contributes to or tends to contribute to the neglect or
delinquency of any child or which act or omission results in the abuse of any
child, as defined in Section 43-21-105(m) of the Youth Court Law, . . . shall
be guilty of a misdemeanor, and upon conviction shall be punished by a fine
not to exceed One Thousand Dollars ($1,000.00), or by imprisonment not to
exceed one (1) year in jail, or by both such fine and imprisonment.
Mississippi Code Annotated section 43-21-105(m) (Rev. 2009) defines “abused child” as:
a child whose parent, guardian or custodian or any person responsible for his
care or support, whether legally obligated to do so or not, has caused or
allowed to be caused upon said child sexual abuse, sexual exploitation,
emotional abuse, mental injury, nonaccidental physical injury or other
maltreatment. Provided, however, that physical discipline, including
spanking, performed on a child by a parent, guardian or custodian in a
reasonable manner shall not be deemed abuse under this section.
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(Emphasis added).
¶32.
The supreme court first defined serious bodily harm in Yates v. Yates, 685 So. 2d 715
(Miss. 1996), overruled by Buffington v. State, 824 So. 2d 576, 580 (¶15) (Miss. 2002). The
supreme court adopted the following definition: “‘serious bodily injury’ means bodily injury
which creates a substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or organ.” Id. at 720
(citation omitted). The Yates court further found that the only distinction between felony
child abuse and misdemeanor child abuse is the element of serious bodily harm, stating:
The elements necessary to prove felonious child abuse are whether Yates did:
(1) willfully (2) cause (3) serious bodily harm (4) to a child.
....
[A]s to misdemeanor child abuse, the elements to consider include whether
Yates did: (1) willfully (2) cause (3) nonaccidental physical injury (4) to a
child.
Id. at 719. Thus, following the Yates decision, the prosecution was required to show injuries
resulting in a substantial risk of death or “serious, permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ” to prove the required
elements of felony child abuse.
¶33.
In Wolfe v. State, 743 So. 2d 380, 385 (¶24) (Miss. 1999), a plurality opinion of the
supreme court adopted a different definition of serious bodily harm in the context of felony
child-abuse cases. The Wolfe decision held that serious bodily harm should be defined as:
“bodily injury which creates a substantial risk of death, or permanent or temporary
disfigurement, or impairment of any bodily organ or function.” Id. (emphasis added). This
12
lower threshold of proof was met by strong dissent. Justice McRae stated the following:
Furthermore, despite the fact that the majority warns that this case should in
no way “be construed as an attempt to prevent parents, teachers and other
custodians involved in child care from properly disciplining their children[,]”
I fear that it will do just that. Redefining “serious bodily injury” to include the
risk of temporary disfigurement means that any parent who leaves a bruise or
red spot on a child as the result of a well-deserved spanking is at risk of being
found guilty of felony child abuse.
Id. at 388 (¶45) (McRae, J., dissenting).
¶34.
Despite the fears of the dissenting justices, the plurality majority opinion in Wolfe was
adopted by a majority of the supreme court in Buffington, 824 So. 2d at 580 (¶15), which
affirmatively overruled Yates. The supreme court held that the appropriate definition of
serious bodily harm as used in the felony child-abuse statute is “bodily injury which creates
a substantial risk of death, or permanent or temporary disfigurement, or impairment of any
function of any bodily organ or function.” Id. Buffington is the controlling precedent on this
issue in this state, and “[t]his Court, sitting as an intermediate appellate court, is bound by
established precedent as set out by the Mississippi Supreme Court and we do not have the
authority to overrule the decisions of that court.” Bevis v. Linkous Constr. Co., 856 So. 2d
535, 541 (¶18) (Miss. Ct. App. 2003) (citation omitted).
¶35.
Henry’s argument on appeal is essentially the same argument as the dissenting justices
in Wolfe. Henry claims there is no ascertainable standard to objectively determine whether
one’s actions in spanking or bruising a child constitute misdemeanor or felony child abuse.
However, because this argument was addressed by the dissenting justices in Wolfe, it is clear
that the supreme court was fully aware of the argument when it issued its decision in
Buffington to adopt the standard used by the plurality in Wolfe.
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¶36.
Henry concedes that the circuit court followed the law as set out by the supreme court
in Buffington. Medical testimony at trial unequivocally proved that Jonathan’s severe
bruising was a temporary disfigurement of a bodily organ. Henry submits that Buffington
should be reversed because it is based on an unconstitutional interpretation of the phrase
serious bodily harm; however, this Court lacks the authority to grant such relief.
¶37. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF
CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF TWENTY
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH FIVE YEARS OF POST-RELEASE SUPERVISION IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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