Berry v. State
| Docket Number: | 2006-KA-00029-COA Linked Case(s): 2006-KA-00029-COA ; 2006-CT-00029-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-05-2007 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Capital murder - Ineffective assistance of counsel - Expert testimony - M.R.E. 702 - M.R.E. 704 - Sufficiency of evidence - Lesser included offense instruction Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-15-2005 Appealed from: Chickasaw County Circuit Court Judge: Andrew K. Howorth Disposition: CONVICTED OF CAPITAL MURDER AND SENTENCED TO LIFE IMPRISONMENT WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Benjamin F. Creekmore Case Number: HK2005-25A |
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| Party Name: | Attorney Name: | |||
| Appellant: | LYDIA BERRY |
ROY KENIONNE SMITH |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Capital murder - Ineffective assistance of counsel - Expert testimony - M.R.E. 702 - M.R.E. 704 - Sufficiency of evidence - Lesser included offense instruction |
| Summary of the Facts: | Lydia Berry was convicted of capital murder and sentenced to life in prison. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Berry argues that defense counsel’s conduct was deficient in that he failed to investigate the case before trial, to call key witnesses, and to request a manslaughter instruction. While she claims there were witnesses available who would have come from Kentucky to testify on her behalf at trial, she does not provide any supporting affidavits from these witnesses. In addition, the decision not to request a manslaughter jury instruction and to present the jury only with the options of guilty or not guilty was not deficient. Issue 2: Expert testimony Berry argues that it was in error to admit the testimony of Dr. Hayne regarding the cause of the burn injuries to the victim’s feet. Dr. Hayne was qualified as an expert, and he presented his testimony without any objection from Berry. A defendant who does not make an objection at trial does not properly preserve the issue for appeal. In addition, Dr. Hayne did not present a legal conclusion in his testimony. He merely presented the facts of which he was aware and gave his expert opinion as to what caused the death. His testimony was relevant and helpful to allow the trier of fact to understand exactly what might have happened to the victim and was properly admitted under M.R.E. 702 and 704. Issue 3: Sufficiency of evidence Berry argues that the State failed to put on any evidence that she intentionally caused the injuries to the victim and maintains that all of this could have been an accident. Taken in the light most favorable to the verdict, Berry was in charge of caring for the two-year-old victim, who, based on all testimony, was healthy and in good condition when she went into Berry’s care. Less than two weeks later, the child is found dead, covered in bruises and abrasions, has lost a significant amount of hair, and has the skin burned off of her feet and ankles. Berry’s omission in failing to at least bring the child to the hospital to care for such extensive and serious injuries was sufficient to find felonious child abuse. Issue 4: Lesser included offense instruction Berry argues that the court should have given an instruction on manslaughter by culpable negligence. The defendant must request an instruction on a lesser included offense. At no point did Berry request a jury instruction on manslaughter. Therefore, it was not error for the court to not instruct the jury on manslaughter. HOLDING: Affirmed. |
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