DeHenre v. State


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Docket Number: 2008-KA-00968-SCT
Linked Case(s): 2008-KA-00968-SCT

Supreme Court: Opinion Link
Opinion Date: 07-01-2010
Opinion Author: Waller, C.J.
Holding: Conviction of manslaughter and sentence of twenty (20) years in the custody of the Mississippi Department of Corrections, with conditions, and payment of a fine in the amount of $10,000.00, Affirmed.

Additional Case Information: Topic: Manslaughter - Mistrial - URCCC 3.12 - Missing evidence - Admission of testimony - M.R.E. 503(a)(1) - Expert testimony - M.R.E. 403 - Testimony by 911 operator - M.R.E. 803(2) - Excited utterance - Prior inconsistent statement
Judge(s) Concurring: Carlson, P.J., Randolph, Lamar and Pierce, JJ.
Dissenting Author : Dickinson, J., With Separate Written Opinion
Dissent Joined By : Graves, P.J., Kitchens and Chandler, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 03-13-2008
Appealed from: Jones County Circuit Court
Judge: Billy Joe Landrum
Disposition: During voir dire in this case, a prospective juror referred to the defendant, Dr. Malachy DeHenre, as an abortionist. The jury convicted DeHenre of manslaughter. The trial court sentenced him to serve twenty years in prison, to pay a $10,000 fine, and to obtain a GED.
District Attorney: Anthony J. Buckley
Case Number: 2006-413-KR

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Malachy DeHenre




JOHN A. PIAZZA, DAVID M. RATCLIFF



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS  

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    Topic: Manslaughter - Mistrial - URCCC 3.12 - Missing evidence - Admission of testimony - M.R.E. 503(a)(1) - Expert testimony - M.R.E. 403 - Testimony by 911 operator - M.R.E. 803(2) - Excited utterance - Prior inconsistent statement

    Summary of the Facts: Malachy DeHenre was convicted of manslaughter. He was sentenced to twenty years. He appeals.

    Summary of Opinion Analysis: Issue 1: Mistrial During voir dire, panel members were asked the routine question of whether they could reach a decision based solely on the evidence. One juror responded, “Every man is entitled to a fair trial, but when DeHenre left here he became an abortionist.” The defense moved immediately for a mistrial, which the trial court ultimately denied. The trial court promptly removed the juror, and panel members indicated that they could put the abortionist comment aside and would not let it affect their decision. Pursuant to URCCC 3.12, a trial court may declare a mistrial for misconduct resulting in substantial and irreparable prejudice to the movant’s case. Despite the incendiary nature of abortion, the isolated comment with respect to DeHenre being an abortionist was not so irreparably prejudicial as to warrant a mistrial. Immediately after this comment was made, the trial court removed that juror and twice asked the members of the jury pool whether they could put the comment aside. They responded affirmatively. DeHenre never requested individual voir dire. Later on, none of the jurors responded negatively when DeHenre’s counsel asked the venire members three or four times if they could assure him that the abortionist comment would not weigh into their decision. Thus, the trial court did not abuse its discretion in denying DeHenre’s motion for mistrial. Issue 2: Missing evidence DeHenre argues that the unavailability of two important pieces of evidence, the victim’s hair samples and nightgown, violated his due-process rights. The State has a duty to preserve evidence, but that duty is limited to that evidence which might be expected to play a significant role in the suspect’s defense. The test for determining whether the unavailability of evidence violates a defendant’s due-process rights includes: the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and the prosecution’s destruction of the evidence must have been in bad faith. DeHenre’s argument fails in two respects. First, there is nothing in the record to suggest that the State destroyed the hair samples or the nightgown in bad faith. The State expressed that, to the best of its knowledge, no one had destroyed any evidence, and DeHenre offered no evidence to the contrary. Second, the exculpatory value of the hair samples and the nightgown is highly suspect. It is unlikely that either piece of evidence would have played a significant role in DeHenre’s defense. Issue 3: Admission of testimony DeHenre argues that the court erred in allowing a doctor to testify about a meeting at his house between DeHenre and the victim (DeHenre’s wife). DeHenre argues that his statements to the doctor were protected under the doctor-patient privilege and that the meeting was too remote in time from the events surrounding the victim’s death. M.R.E. 503(a)(1) defines a patient as a person who consults or is examined or interviewed by a physician or psychotherapist. DeHenre was not the doctor’s patient. The doctor’s primary purpose for calling the meeting was to get DeHenre’s wife to return to practicing medicine in Laurel, and to begin sharing medical calls with him again. The DeHenres’ relationship was merely a subsidiary concern. Thus, the doctor-patient privilege is inapplicable. With regard to whether the meeting was too remote, testimony about the meeting enabled the State to present a coherent story of the DeHenres’ tumultuous relationship and supplied a potential motive for why DeHenre might have killed his wife. Issue 4: Expert testimony DeHenre argues that Dr. Hayne was unqualified to testify; that his methods and conclusions were unreliable; and that his autopsy was inadequate. DeHenre makes much of the fact that Hayne is not board-certified by the American Board of Pathology, as required by section 41-61-55. The statute is inapposite, however, because Hayne was neither an applicant for state medical examiner nor a holder of that office. Also, there is no evidence to establish that his testimony was unreliable. DeHenre also argues that the testimony of the expert in pathology was inadmissible because he had relied on Hayne’s dubious autopsy report, and because it amounted to needless cumulative evidence under M.R.E. 403. However, the expert is board-certified in anatomic, clinical, and forensic pathology. His writings have been published in approximately eighty publications, and he estimated that he had testified close to 1,000 times over his forty-five-year career. Although the expert reinforced Hayne’s testimony to an extent, his testimony was not entirely cumulative. He introduced new evidence concerning test patterns that were fired from the gun that killed the victim. Thus, the trial court did not abuse its discretion in allowing his testimony. Issue 5: 911 operator DeHenre argues that the testimony of the 911 operator was inadmissible hearsay. She testified that she received a call from DeHenre’s daughter, who said “that my father has shot my mother.” Under M.R.E. 803(2), a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is considered admissible hearsay. The two most important factors are spontaneity and the duration of the excited state. Here, the daughter’s statements were an excited utterance. She called 911 from a neighbor’s home just minutes after the shooting. She had just seen that her mother had been shot and believed her to be dead. And she saw her father with a pistol. However, the daughter did not witness the actual shooting. Because her statement that “my father has shot my mother” was not based on personal knowledge, it should have been excluded. Its admission, however, was harmless error, because another witness testified immediately after that the daughter said she had not witnessed the shooting. DeHenre also argues that his daughter’s statements were inadmissible as prior inconsistent statements, because she later recanted the statements. Prior inconsistent, out-of-court statements made by a nonparty witness are not admissible as substantive evidence. Nothing in the record shows that the daughter ever recanted the statements she had made during the 911 call, or that she has given other testimony inconsistent with those statements. Therefore, the daughter’s statements to Morgan were not prior inconsistent statements.


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