Jason Isham v. State of Mississippi

161 So. 3d 1076, 2015 Miss. LEXIS 191, 2015 WL 1848137
CourtMississippi Supreme Court
DecidedApril 23, 2015
Docket2014-KA-00038-SCT
StatusPublished
Cited by17 cases

This text of 161 So. 3d 1076 (Jason Isham v. State of Mississippi) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jason Isham v. State of Mississippi, 161 So. 3d 1076, 2015 Miss. LEXIS 191, 2015 WL 1848137 (Mich. 2015).

Opinions

KITCHENS, Justice,

for the Court:

¶ 1. Jason Isham was convicted in the Circuit Court of DeSoto County of one count of felonious child abuse pursuant to Mississippi Code Section 97-5-39(2). His wife’s two-year-old son, Tommy,1 was hospitalized in May, 2012, for a severe, traumatic brain injury, which caused severe swelling of the child’s brain, stroke, and permanent weakness on his right side. Because Isham was alone with Tommy when this occurred, he was charged with felonious child abuse of Tommy. At trial, expert medical witnesses for the State testified that Tommy’s injuries resulted from severe blunt trauma. Isham, who was represented by a public defender and a pro bono attorney, requested funds with which to hire his own expert to testify about possible alternative causes for Tommy’s injuries. The trial court denied the request. On appeal, Isham raises one issue: that the trial court erred when it refused him the funds necessary to hire an expert in his defense. In light of this Court’s recent holding in Brown v. State, 152 So.3d 1146 (Miss.2014), we reverse Isham’s conviction and remand the case for a new trial in which the trial court must order public funds for such defense experts as are necessary for the accused to prepare and present an adequate defense.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jason Isham lived with his wife, Mary Beth, and her then-two-year-old son Tommy in DeSoto County, Mississippi. On April 30, 2012, Mary Beth noticed that the back of the child’s head was swollen and mushy, and that Tommy had a 103-degree temperature. Although Tommy had spent the previous few days with his biological father, the child had not exhibited any health problems when he returned to the residence of his mother and Isham. Tommy was treated at LeBonheur Hospital in Memphis, Tennessee.

¶ 3. Dr. Karen Lakin examined Tommy at LeBonheur and noticed “a lot of soft tissue swelling all around his head, in the back of his ears a lot of bruising, ... [a]nd probably the most remarkable is the [1078]*1078amount of swelling that he had and the amount of bruising that he had around his head.” Dr. Lakin diagnosed the child with soft-tissue swelling and significant bruising to the scalp and forehead, concluding that these conditions could not have been caused by a roller-skating accident the week before and “appeared to be from some type of blunt force trauma, but the amount of bleeding was out of proportion to what we would see with a trivial fall.” Dr. Lakin interpreted the child’s injuries to be a result of child abuse, and she therefore reported Tommy’s condition to the Department of Human Services so that it could investigate whether his injuries were the result of “nonaccidental trauma.”

¶4. Tommy returned home from Le Bonheur Hospital with Mary Beth and Is-ham on May 3, 2012. From May 7 to May 9, Tommy stayed at his biological father’s home. The child was fíne throughout that visit. Then, on May 10, he returned to Mary Beth’s custody. On May 11, 2012, after being with his mother and Isham for a day, the child was very drowsy and nauseated. He also reacted very negatively to sunlight.

¶ 5. The next day, Mary Beth fed Tommy some cut-up bites of hot dog and laid him down for a nap between 11:30 a.m. and 12:00 p.m. Mary Beth left the house to run an errand around 12:30 p.m.; but before she had been gone more than ten minutes, she received a frantic phone call from Is-ham informing her that Tommy was unresponsive and was having trouble breathing. Mary Beth immediately returned home and attempted to perform CPR on Tommy.

¶ 6. An ambulance was called, and it transported Tommy to the emergency room at Baptist DeSoto Hospital. There, he was treated by emergency room physician Dr. Rosa Gomez. The child was blue from oxygen deprivation, and his body was very “spastic,” alternating between conditions of extreme rigidity and extreme flaccidity. His left pupil was blown, meaning that it was large and nonreactive, indicating that the child had severe internal bleeding within his skull. When Tommy arrived at the emergency room, no medical professionals observed the presence of external injuries to his person.

¶ 7. Because emergency room physicians suspected that Tommy had suffered a traumatic brain injury, the child was then airlifted from Baptist DeSoto Hospital to LeBonheur Hospital in Memphis, where he was treated by Dr. Stephanie Einhaus, a pediatric neurosurgeon. When Tommy arrived at LeBonheur, a CAT scan revealed a blood clot on the right side of his brain as well as a significant bruise, or contusion, on the left side of his brain. Dr. Einhaus performed emergency surgery to relieve the swelling in his brain, which entailed removing a window of bone from the skull to allow the brain room to swell. After the surgery, the child experienced several other complications. His brain continued to swell despite Dr. Einhaus’s efforts, which included draining fluid from the brain and placing Tommy in a medically induced coma. Dr. Einhaus discovered that Tommy had suffered a stroke in the left side of his brain, for which emergency surgery on the right side of the child’s brain was necessary to prevent another stroke and further damage from swelling.

¶ 8. The child survived the trauma and the surgeries; but he had to relearn to talk and has permanent weakness on the right side of his body. Because Tommy had exhibited signs of abuse on April 30, 2012, while he was in the care of Isham, because Tommy did not begin to show injuries until he began living in Isham’s home, and because Tommy exhibited serious head injuries consistent with abusive blunt-force trauma and shaking after being [1079]*1079in Isham’s care, Jason Isham was charged with felonious child abuse pursuant to Mississippi Code Section 97-5-39(2).

¶ 9. Before trial, Isham designated two experts, Dr. Terry Moore and Dr. Joseph Wippold. Isham stated that Dr. Moore, a professor of internal medicine and pediatrics and director of pediatric rheumatolo-gy, diagnosed Tommy with Systemic Lupus Erythematosus and CNS Vasculitis. Dr. Wippold, a neuroradiologist, opined that nonaccidental trauma was not the cause of Tommy’s head injuries. On October 17, 2013, eleven days before trial was to begin, Isham filed his Motion for State to Pay for Expert Fees and for Continuance if Necessary to Secure Attendance or Testimony, requesting funds “to pay the expenses of obtaining the presence at trial of his identified experts ... or alternatively to pay the expenses of securing deposition testimony to be presented at trial.” He stated that he was indigent and that the trial court had appointed a public defender to represent him, and that he also was represented by pro bono counsel. He explained that the testimony of Drs. Moore and Wippold would be necessary for his defense.

¶ 10. The trial court held a hearing on the motion for funds on October 22, 2013. Isham’s counsel informed the court that Isham was indigent, as evidenced by the court’s having appointed him a public defender. Isham’s counsel explained that, because the State had the benefit of medical experts, it was only fair for Isham to be given the opportunity to consult an expert and “to provide an explanation for the observations and the condition of the child in this case.”

¶ 11. The trial court agreed that Isham probably should have an expert. “In a perfect world, I suppose that the county should be required to provide the defense with — an indigent defendant with experts.

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161 So. 3d 1076, 2015 Miss. LEXIS 191, 2015 WL 1848137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jason-isham-v-state-of-mississippi-miss-2015.