Berry v. State

980 So. 2d 936, 2007 WL 1599213
CourtCourt of Appeals of Mississippi
DecidedJune 5, 2007
Docket2006-KA-00029-COA
StatusPublished
Cited by5 cases

This text of 980 So. 2d 936 (Berry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. State, 980 So. 2d 936, 2007 WL 1599213 (Mich. Ct. App. 2007).

Opinion

980 So.2d 936 (2007)

Lydia BERRY, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2006-KA-00029-COA.

Court of Appeals of Mississippi.

June 5, 2007.
Rehearing Denied January 8, 2008.

*938 Roy Kenionne Smith, Jackson, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before MYERS, P.J., CHANDLER, GRIFFIS and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. Lydia Berry was convicted of capital murder and sentenced to life in prison by the Chickasaw County Circuit Court. On September 15, 2005, the jury found Berry guilty of the murder of B.F.[1] while engaged in the commission of the felonious abuse of the child. The court denied her motion for judgment notwithstanding the verdict or in the alternative a new trial. Aggrieved, Berry appeals. Finding no error, we affirm.

FACTS

¶ 2. The child victim in this case, two-year-old B.F., was found dead on September 2, 2004, at the home of Lydia Berry and her husband, Derrick Berry. The child was found on the floor of the Berry's trailer, and she was stiff and was covered in bruises. She also had severe burns covering her ankles and feet, and there was fluid coming out of her mouth. A Chickasaw County grand jury indicted Lydia and Derrick on September 2, 2004, for capital murder as a result of felonious abuse of a child under Mississippi Code Annotated section 97-3-19(2)(f) (Rev.2006). Trial was held in the Chickasaw County Circuit Court from September 12-15, 2005.

¶ 3. B.F. was in the care of Lydia because she had agreed to keep B.F. at their home in Mississippi for two weeks. According to B.B., the mother of B.F., her *939 older daughter, K.B., was possibly being abused by her babysitter, and B.B. wanted to get B.F. away for a while so she could deal with the situation. Lydia is the sister-in-law of B.B., and she had kept B.F. on other occasions. This time, she volunteered to keep B.F. for two weeks to help out B.B. Lydia and Derrick then traveled to Kentucky to pick up B.F. from her mother's home on August 22, 2004, and brought her to their home in Mississippi. They did not bring the other daughter, K.B., to Mississippi with them because she wanted to stay in Kentucky to attend a church gathering.

¶ 4. Lydia and Derrick testified that, at the time they picked up B.F., they noticed only one bruise on her arm, and they did not notice anything wrong with the child. B.B. testified she did not notice any bruises on B.F. at the time Lydia picked her up. Upon returning to Mississippi, Lydia testified that B.F. started acting strange, shaking, crying, and soiling herself. She also said that B.F.'s hair began coming out.

¶ 5. Testimony during trial revealed that, during the time period that Lydia kept B.F., B.F. suffered severe burns around her ankles and her feet. Lydia testified that she sent B.F. to run the water for a bath and that she then heard B.F. yelling about the water being hot. Upon hearing her cries, Lydia said she went into the bathroom and turned on the cold water. At no point did Lydia or Derrick take B.F. to the hospital, but after calling her own mother, Lydia testified that she put aloe vera on the child's burns. According to Lydia, the time when B.F. was burned was the only time she had told the child to run water for herself. Every other day, Lydia said she would run the water and bathe B.F. herself. Nevertheless, even though Lydia would undress and bathe B.F. everyday, she did not recall seeing the bruises covering B.F.'s body that were recorded in the autopsy photographs.

¶ 6. Lydia denied causing the injuries to B.F., but she did admit that she spanked her on two occasions, once with her hand and once with a belt. She also said she saw B.F. fall three times. Derrick testified that Lydia was responsible for disciplining the child. He said that he never saw Lydia punish B.F. or any of the other children that would stay with them because Lydia would take them into the bedroom; however, he knew that she took them there to punish them. Derrick also stated that burns on B.F.'s feet did not seem to bother her, and she had no problem walking around after suffering the burns. While Derrick did not remember seeing most of the bruises photographed on B.F., he testified that he worked most of the day and did not have much contact with her.

¶ 7. An investigation of the Berry's trailer revealed large clumps of B.F.'s hair in the bathroom trash can and a plate of food on the floor. Lydia testified that she would feed B.F. on the floor but claimed this was because B.F. could not reach the table. B.F. also slept on the floor because Lydia said she would soil the bed at night.

¶ 8. Lydia's sister, Marlena Hutchinson, also took the stand and testified that Lydia called her during the first few days that B.F. was in her care and was concerned because B.F. was acting strange. Lydia said she called Marlena because she lived in Kentucky with B.B., and Lydia did not have a phone number to reach B.B. Lydia never managed to get in touch with B.B. until after B.F.'s feet were burned, which was about two days before B.F. died.

¶ 9. At trial, the State presented Dr. Stephen Hayne as an expert in forensic pathology. Dr. Hayne conducted the autopsy of B.F. and concluded that she had died of dehydration and severe blunt force *940 trauma. He testified that he found bruises covering B.F.'s eyes, forehead, right and left arms, chest, thighs, and back that were consistent with being hit with a fist, forearm, elbow, or foot. According to the doctor, the coloring of the bruises indicated that they were from two to seven days old. He also found abrasions on B.F.'s chest, right arm, back, and forehead. An internal investigation by the doctor revealed to him that B.F. was severely dehydrated, as evidenced by cerebral edema, swelling of the brain, and congestion of the organs. He indicated that the child's sunken eyes and dry lips also supported this conclusion.

¶10. Dr. Hayne determined that the burns on B.F.'s feet were thermal water immersion burns and were consistent with B.F. being placed in and held in hot water. According to the doctor, the lack of splash burns and the fact that the soles of B.F.'s feet were not burned indicated that someone held her in the water. It was his opinion that the burns suffered by B.F. were not accidentally caused by the child getting in the hot water, in which case there should have been splash burns and burns on the soles of her feet. In this case, the burns were located only on the upper parts of her feet and her ankles.

¶ 11. On September 15, 2005, the jury returned a verdict of guilty against Lydia for the capital murder of B.F. She was sentenced to life imprisonment, and her motion for a judgment notwithstanding the verdict or in the alternative a new trial was denied.

¶ 12. Lydia asserts the following issues on appeal:

I. Whether she received ineffective assistance of counsel
II. Whether testimony as to how the injuries occurred was outside the scope of testimony of the State's expert
III. Whether the trial court erred in refusing to grant her motion for a directed verdict, peremptory instruction, or motion for judgment notwithstanding the verdict
IV. Whether the trial court erred in refusing to grant her motion for a new trial
V. Whether the trial court should have given a jury instruction on manslaughter by culpable negligence
VI. Whether cumulative error requires reversal

ISSUES AND ANALYSIS

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Related

Berry v. State of Mississippi
N.D. Mississippi, 2024
James C. Newell, Jr. v. State of Mississippi
176 So. 3d 78 (Court of Appeals of Mississippi, 2014)
Gore v. State
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Cite This Page — Counsel Stack

Bluebook (online)
980 So. 2d 936, 2007 WL 1599213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-state-missctapp-2007.