Scarbough, et al. v. State
| Docket Number: | 2002-KA-02016-COA Linked Case(s): 2002-CT-02016-SCT ; 2002-KA-02016-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-07-2004 Opinion Author: Bridges, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Felonious child abuse - Sufficiency of evidence - Section 97-5-39 - Circumstantial evidence - Right against self-incrimination - Right to confrontation - Spousal privilege - M.R.E. 504(d) - Severance of trials - Ineffective assistance of counsel - Sentencing of co-defendants Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Myers, Chandler, Griffis and Barnes, JJ. Non Participating Judge(s): Ishee, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-25-2002 Appealed from: Copiah County Circuit Court Judge: Lamar Pickard Disposition: WILLIAM SCARBOUGH - FELONIOUS CHILD ABUSE: SENTENCED TO SIXTEEN YEARS WITH THE MISSISSIPPI STATE DEPARTMENT OF CORRECTIONS. THERESA SCARBOUGH - FELONIOUS CHILD ABUSE: SENTENCED TO TWELVE YEARS WITH THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: Alexander C. Martin Case Number: 2002-0074CR-A |
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| Note: | The motions for rehearing are denied. The motion for modification of opinion is granted. The original opinion is withdrawn and this opinion is substituted therefor. The judgment of the Circuit Court of Copiah County of conviction of felonious child abuse of both William Scarbough and Theresa Scarbough and sentence of sixteen and twelve years, respectively, in the custody of the Mississippi Department of Corrections is affirmed. | |
| Party Name: | Attorney Name: | |||
| Appellant: | William Scarbough a/k/a William Scarborough and Theresa Catchings Scarbough |
PRO SE
PAMELA A. FERRINGTON
LISA MISHUNE ROSS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART |
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| Topic: | Felonious child abuse - Sufficiency of evidence - Section 97-5-39 - Circumstantial evidence - Right against self-incrimination - Right to confrontation - Spousal privilege - M.R.E. 504(d) - Severance of trials - Ineffective assistance of counsel - Sentencing of co-defendants |
| Summary of the Facts: | The motion for modification of opinion is granted, and this opinion is substituted for the original opinion. Theresa and William Scarbough were convicted of felonious child abuse in a joint trial. Theresa was sentenced to twelve years and Williams was sentenced to sixteen years. They appeal. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Theresa and William argue the proof given to the jury only supports a finding of misdemeanor neglect and does not prove they intentionally injured Theresa’s son as required by section 97-5-39 (2). Failure to provide adequate medical treatment to a child you have seen fall or to a child you know to have fallen when such falls were severe enough to result in multiple fractures can be interpreted as intentional. The conviction of those who fail to notice their child is in need of medical treatment or of those who simply fail to provide it is in keeping with the intentions of section 97-5-39. Therefore, the evidence supported the verdicts. Issue 2: Circumstantial evidence Theresa argues that the state’s evidence against her was entirely circumstantial and that it did not adequately disprove all reasonable hypotheses of her innocence. A person can be convicted of committing child abuse through an act of omission. Here, the state presented the jury with circumstantial evidence in conjunction with direct evidence. Direct evidence like the x-rays and medical records of the child, testimony regarding primary child care and circumstantial evidence including theories of child abuse from the investigators, DHS workers and the treating physicians was presented. The prosecution did present enough evidence to the jury to sufficiently rule out all reasonable theories of innocence. Issue 3: Right against self-incrimination William argues that the assistant district attorney violated his right not to testify in his own defense in closing arguments. The State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to a defendant's failure to testify. The statements made by the district attorney did not penalize the defendant for exerting his constitutional privilege but rather were comments on the defendant’s lack of a defense. Issue 3: Right to confrontation William argues that hearsay testimony by the investigator and DHS worker coupled with Theresa invoking her right not to testify resulted in a violation of his Sixth Amendment right to confrontation. Corroborative witness testimony requires an interlocking of the testimony and factual recitations. Here, there was the requisite interlocking. The statements both William and Theresa gave the investigators were similar. Also, William never attempted to offer a contradicting statement of how the injuries occurred. Issue 4: Privileged statements William argues that the court erred in allowing witnesses to testify about privileged statements Theresa made about him during the investigation. William did not preserve this issue for appeal with a contemporaneous objection. In addition, the crime of felonious child abuse is excepted from the marital privilege under M.R.E. 504(d). Issue 5: Severance of trials William argues that the court erred in not sua sponte severing the trials. Where the testimony of one defendant did not tend to exculpate himself at the expense of another and there does not appear to be a conflict of interest among the co-defendants, severance is not required. Unless one can show actual prejudice, a trial court cannot be found to have abused its discretion. William does not point to any actual prejudice which may have occurred as result of trying these cases jointly. Issue 6: Ineffective assistance of counsel William argues he was denied effective assistance of counsel because his stand-by attorney failed to advise him that he needed to move to sever the trials, that he needed to object to testimony during closing arguments and that he should have objected to testimony regarding potential spousal privilege. As stand-by counsel, a defense attorney is without authority, discretion or control and the charge that he rendered constitutionally ineffective assistance is without merit. Issue 7: Sentencing of co-defendants William argues that the judge should have considered the factors in United States v. Wheeler, 802 F.2d 778, 783 (5th Cir. 1986) when considering sentencing of co-defendants. William fails to note how their sentences are wildly different and does not claim that the sentence was either outside the statutory guidelines or an abuse of discretion on the part of the judge. |
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