Joshua Eric Hawk Clark a/k/a Joshua Clark v. State of Mississippi

• Court: Mississippi Supreme Court
• Decided: February 4, 2021
• Docket: 2017-CT-00411-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2017-CT-00411-SCT

JOSHUA ERIC HAWK CLARK a/k/a JOSHUA CLARK

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 03/03/2017 TRIAL JUDGE: HON. THOMAS J. GARDNER, III TRIAL COURT ATTORNEYS: JOHN D. WEDDLE DAVID L. DANIELS PAUL C. GAULT RICHARD D. BOWEN JIM WAIDE DANIEL M. WAIDE DAN W. WEBB CATHERINE C. SERVATI COURT FROM WHICH APPEALED: ITAWAMBA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JIM WAIDE DAN W. WEBB DANIEL M. WAIDE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: JOHN DAVID WEDDLE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE ITAWAMBA COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED - 02/04/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. Following the death of his four-month-old daughter, Kyllie Clark, and his subsequent

indictment for murder under Mississippi Code Section 97-3-19(2)(f) (Rev. 2014), Joshua

Clark was convicted of depraved-heart murder under Mississippi Code Section 97-3-

19(1)(b). The prosecution relied heavily on the testimony of Dr. Karen Lakin, a pediatrician

who opined that Kyllie’s death resulted from Shaken Baby Syndrome (SBS), now referred

to as Abusive Head Trauma (AHT). The Court of Appeals reversed and remanded Clark’s

conviction after finding that crucial parts of Dr. Lakin’s testimony were unreliable and

therefore inadmissible. Clark v. State, No. 2017-KA-00411-COA, 2019 WL 5566234 (Miss.

Ct. App. Oct. 29, 2019). This Court granted certiorari on issues raised both by Clark and by

the State.

¶2. We disagree with the conclusion of the Court of Appeals that Dr. Lakin’s opinion

testimony was inadequately supported to meet the reliability prong of the Daubert standard

and was thus improperly admitted. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). We hold instead that the circuit court did

not err by admitting Dr. Lakin’s testimony. Therefore, the judgment of the Court of Appeals

is reversed, and the judgment of the Itawamba County Circuit Court is reinstated and

affirmed.

¶3. Further, we find that Clark’s six additional assignments of error not previously

addressed by the Court of Appeals are without merit. First, we hold that sufficient evidence

existed to establish Clark’s guilt beyond a reasonable doubt. Second, we hold that

Mississippi Code Sections 97-3-19(2)(f) and 97-5-39(2)(c)(iii) (Rev. 2014) are not

unconstitutionally vague. Third, we find that the circuit court did not abuse its discretion by

2 instructing the jury on depraved-heart murder. Fourth, we find that the circuit court did not

violate Clark’s Sixth and Fourteenth Amendment rights to a fair cross-section of the

community by refusing to separate the trials into a guilt phase and a penalty phase so that

jurors opposed to the death penalty could sit at the guilt phase. Fifth, we find that the trial

court did not err by (a) permitting the introduction of evidence regarding the compensation

of Clark’s expert, Dr. Shuman; (b) disallowing impeachment evidence regarding Dr. Lakin’s

divorce and child; or (c) disallowing testimony of Bethany Clark’s drug conviction. Sixth,

and finally, we find that the circuit court did not abuse its discretion when it admitted,

through Dr. Lakin’s testimony, the medical report dictated by nurse practitioner Ashley

Weiderhold that was later reviewed and signed by Dr. Lakin.

FACTS

¶4. On January 5, 2008, Kyllie Clark was left in Clark’s sole care at around 3 p.m. when

his wife, Bethany, and two teenagers staying with the Clarks left their home. Clark, 2019 WL

5566234, at *2. From approximately 3 p.m. to 5:30 p.m., no one besides Clark witnessed

what occurred in the Clark household. Id. When Bethany and the teenagers returned,

Kyllie’s condition prompted alarm. Id. at *2. Clark said that approximately five or ten

minutes before Bethany and the teenagers returned, Kyllie had made a gasping sound. Id.

After one of the teenagers called 911, Clark brought Kyllie into the bedroom where she went

limp. Id. Bethany brought Kyllie back to the living room and attempted CPR. Id.

¶5. Kyllie was taken to a local hospital and later transferred to Le Bonheur Children’s

Hospital in Memphis, Tennessee, for specialized care. Id. at *2. Kyllie was diagnosed with

3 rib fractures, retinal and subdural hemorrhages and brain swelling. Id. The hospital staff

ultimately declared Kyllie brain dead and terminated life support. Id. at *2. Dr. Lakin, who

would later serve as the State’s primary witness, examined Kyllie at Le Bonheur and

concluded that her death had been caused by SBS/AHT. Id. at *2. Dr. Lakin’s conclusion

was memorialized in a report dictated by Ashley Weiderhold, a nurse practitioner. Dr. Lakin

reviewed and signed the same report.1

STANDARD OF REVIEW

¶6. “When reviewing a trial court’s decision to allow or disallow evidence, including

expert testimony, we apply an abuse of discretion standard.” Watts v. Radiator Specialty

Co., 990 So. 2d 143, 145-46 (Miss. 2008) (internal quotation marks omitted) (quoting

Canadian Nat’l/Ill. Cent. R.R. v. Hall, 953 So. 2d 1084, 1094 (Miss. 2007)). “Therefore,

the decision of a trial court will stand ‘unless we conclude that the discretion was arbitrary

and clearly erroneous, amounting to an abuse of discretion.’” Miss. Transp. Comm’n v.

McLemore, 863 So. 2d 31, 34 (Miss. 2003) (quoting Puckett v. State, 737 So. 2d 322, 342

(Miss. 1999)).

¶7. Moreover, “[w]hen testing the sufficiency of the evidence, this Court uses a de novo

standard of review.” Sanford v. State, 247 So. 3d 1242, 1244 (citing Brooks v. State, 203

So. 3d 1134, 1137 (Miss. 2016)). Thus, “‘[t]he relevant question is whether “any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.”’” Id. (quoting Hearn v. State, 3 So. 3d 722, 740 (Miss. 2008)). And “[t]he evidence

1 Additional relevant facts and procedural history concerning the additional six issues raised by Clark on appeal are provided in the discussion of each issue below.

4 is viewed in the light most favorable to the State.” Id. (quoting Henley v. State, 136 So. 3d

413, 415 (Miss. 2014)).

¶8. Additionally, “[j]ury instructions are generally within the discretion of the trial court

and the settled standard of review is abuse of discretion.” Bailey v. State, 78 So. 3d 308, 315

(Miss. 2012) (citing Newell v. State, 49 So. 3d 66, 73 (Miss. 2010)). We “review[] jury

instructions as a whole[,]” and “[w]hen those instructions, ‘taken as a whole fairly—although

not perfectly—announce the applicable primary rules of law . . . no reversible error will be

found.’” Moody v. State, 202 So. 3d 1235, 1237 (Miss. 2016) (quoting Boyd v. State, 47 So.

3d 121, 123-24 (Miss. 2010). And “constitutional questions are reviewed de novo.”

Armstead v. State, 196 So. 3d 913, 916 (Miss. 2016) (citing Smith v. State, 25 So. 3d 264,

267 (Miss. 2009)).

DISCUSSION

¶9. The State and Clark filed petitions for certiorari raising the following three issues:

first, whether the Court of Appeals applied an incorrect Daubert standard in analyzing the

trial court’s admission of portions of Dr. Lakin’s expert testimony; second, whether, when

the Court of Appeals reverses and orders a new trial because the State’s expert does not meet

Mississippi Rule of Civil Procedure 702 reliability standards, the Court of Appeals must also

address the defendant’s other assignments of error; and third, whether the Double Jeopardy

Clauses of the United States and Mississippi Constitutions forbid retrial in a circumstantial

evidence case in which the State does not introduce evidence negating non-criminal, medical

causes of the condition causing the injury. Because we reverse the Court of Appeals based

on our analysis of the first issue on certiorari, we do not address the remaining two issues

5 raised on certiorari. Further, since we are reversing the Court of Appeals and reinstating the

judgment of the circuit court, we also must address the remaining six assignments of error

raised on appeal.

I. Dr. Lakin’s Testimony

¶10. Dr. Lakin, who examined Kyllie at Le Bonheur hospital, became the State’s expert

witness and testified about SBS/AHT. At trial, Dr. Lakin testified that she has “lectured

extensively in abusive head trauma.” She then went on to explain SBS/AHT to the trial court

and to the jury. She described how around the “late [1960s] or early [1970s]” medical

findings showed “injured children” with “intracranial hemorrhages” that resulted from “what

we call whiplash injuries.” She continued explaining that these “injuries involve particularly

intracranial hemorrhages called subdural hemorrhages, which is a bleeding that occurs in the

dura layer of the brain.” She testified that the term used to describe what caused these

injuries was “beginning to be used as shaken baby syndrome.” She explained that ultimately,

SBS has been reduced to a “component” of the larger diagnosis, AHT.

¶11. In her testimony, Dr. Lakin importantly distinguished between the possession of a

prior “history” and a “lack of significant history.” She testified that in a case in which she

knows of a prior history, like a car accident, she would not “report that to Child Protective

Services because [she] know[s] that they have been in a car accident and they have sustained

those life-threatening or fatal injuries.” She continued to explain that in a case that lacks a

prior history in which the child’s injuries are consistent with a prior history, like the car

accident case, then “in [her] opinion, that combination of findings with a lack of significant

history would, in [her] opinion, be consistent with abusive head trauma or nonaccidental

6 trauma.”

¶12. Dr. Lakin concluded that the injuries Kyllie suffered were the result of AHT. The

Court of Appeals, however, found that the circuit court erred by admitting Dr. Lakin’s trial

testimony. We disagree. The circuit court did not err by admitting Dr. Lakin’s testimony.

¶13. We must not allow ourselves to become the gatekeeper. As we have stated in

McLemore: “We are confident that our learned trial judges can and will properly assume the

role as gatekeeper on questions of admissibility of expert testimony . . . . The trial court can

identify the specific indicia of reliability of evidence in a particular technical or scientific

field.” McLemore, 863 So. 2d at 40.

¶14. Rather than becoming the gatekeeper, our function is to determine whether the actual

gatekeeper, the trial judge, has abused his discretion in performing that role in a particular

case. Inv’r Res. Servs., Inc. v. Cato, 15 So. 3d 412, 416 (Miss. 2009). In this case, we

conclude that the trial judge properly performed his role as gatekeeper by admitting Dr.

Lakin’s testimony. The fact that separate members of this Court might come to a different

conclusion than the trial judge is of no matter under the applicable standard of review.

¶15. Mississippi Rule of Evidence 702 sets forth the analysis for admitting expert

testimony. The rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

7 (c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

MRE 702.2

¶16. “Under Mississippi Rule of Evidence 702, expert testimony should be admitted only

when the trial court can affirmatively answer a two-fold inquiry.” Kan. City S. Ry. v.

Johnson, 798 So. 2d 374, 382 (Miss. 2001), superseded by rule as stated in McLemore, 863

So. 2d 31. The first prong mandates that a witness must be qualified by virtue of his or her

knowledge, skill, experience, or education. Id. (citing MRE 702). Second, “the witness’s

scientific, technical, or other specialized knowledge must assist the trier of fact to understand

or decide a fact in issue.” Id. (citing MRE 702). Put simply, the expert’s proposed

testimony must be both relevant to the case at hand and based on reliable methodology. This

standard is generally known as the Daubert standard. See McLemore, 863 So. 2d at 35

(adopting the federal standard for admissibility of expert witness testimony articulated in

Daubert, 509 U.S. at 592-594, for Mississippi courts).

¶17. In amending Rule 702 in 2003, this Court recognized that trial courts are vested with

a gatekeeping responsibility to determine whether the expert testimony presented is both

relevant and reliable. MRE 702 advisory committee note. It is the task of the trial court to

make a “preliminary assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and of whether the reasoning or methodology properly can

2 Mississippi Rule of Evidence 702 is identical to Rule 702 of the Federal Rules of Evidence.

8 be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

¶18. In applying the Daubert standard, we must first determine whether Dr. Lakin’s expert

testimony was relevant to the case at hand. The Mississippi Rules of Evidence define

evidence as relevant if “(a) it has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of consequence in determining the case.”

MRE 401. “[T]he threshold for admissibility of relevant evidence is not great. Evidence is

relevant if it has any tendency to prove a consequential fact.” McLemore, 863 So. 2d at 40

(internal quotation marks omitted) (quoting Whitten v. Cox, 799 So. 2d 1, 15 (Miss. 2000)).

¶19. We find that Dr. Lakin’s opinion as to the cause of Kyllie’s death was relevant and

satisfies the first prong of the Daubert standard. It was the second prong of the Daubert

standard that concerned the Court of Appeals. After careful review, however, this Court

concludes that this prong, too, was satisfied.

¶20. First, the Court of Appeals found fault with the specific wording used by the trial

judge to show that Dr. Lakin’s testimony was reliable. Clark, 2019 WL 5566234, at *9-10.

The trial judge found, in part, that “she is qualified to testify.” This statement was construed

by the Court of Appeals to mean that no consideration was given to relevance or reliability.

See id. But magic words are not required under the Daubert standard or elsewhere. Jones

v. State, 920 So. 2d 465, 476 (Miss. 2006) (“magic words” not necessary in the context of

Rule 403). The trial judge clearly found the testimony admissible both by acknowledging

the availability to the defense of cross-examination and by, of course, allowing the testimony

in the trial. The judge’s duty is to perform the gatekeeper function and to leave for us a

record sufficient to allow us to determine that the function was performed and supported by

9 the record submitted. We have before us the record, and it is sufficient for us to determine

whether the trial judge abused his discretion. The fact that the judge lumped the Daubert

finding under the phrase “qualified to testify” is of no importance here because it is clear that

the judge considered not only Dr. Lakin’s qualifications but also the relevance and reliability

of her expert testimony concerning SBS/AHT. The record clearly shows that the trial judge

had the issues regarding the actual SBS/AHT testimony squarely before it when it determined

Dr. Lakin to be “qualified to testify.”

¶21. Second, the Court of Appeals relied on the fact that Dr. Lakin lacked recall of certain

literature supporting her theories and conceded articles in opposition to her testimony. Clark,

2019 WL 5566234, at *8-9. Of course, failing to recall certain articles in a scientific field

cannot be uncommon and opposition articles in a contentious field are to be expected. This

is what cross-examination of an expert witness is all about. An appellate court that deems

concessions on cross-examination to be disqualifying not only thrusts that court squarely into

the role of gatekeeper, but it also threatens to establish an expert-witness threshold so high

that it borders on perfection.

¶22. Dr. Lakin was required to provide evidence of support and acceptance in the scientific

community. Patterson v. Tibbs, 60 So. 3d 742, 751 (Miss. 2011). She did so by citing the

American Academy of Pediatrics (AAP) as well as its Canadian counterpart and supporting

evidence from the Centers for Disease Control. Specifically, Dr. Lakin testified that she was

member of the AAP. Further, when asked if the AAP recognizes and accepts SBS/AHT, not

only did Dr. Lakin respond affirmatively, but she went on to testify that SBS/AHT is

accepted “by a number of other medical governing organizations” including the Centers for

10 Disease Control which, according to Dr. Lakin, “funds research in abusive head trauma.”

She further testified that numerous peer-reviewed articles across different disciplines

supported SBS/AHT.

¶23. The Court of Appeals also compared testimony of the expert witness for the defense

to that of Dr. Lakin. Clark, 2019 WL 5566234, at *5. While this Court might consider

opposing testimonies in an evaluation of the weight or sufficiency of the evidence, we have

no place comparing the two in determining the admissibility of one of their opinions. That

one party’s expert witness contradicts the testimony of the other party’s expert witness should

come as no surprise. We even have a name for it. We call it a “battle of the experts.” Hill

v. Mills, 26 So. 3d 322, 330 (Miss. 2010). The fact the Court of Appeals may itself deem the

expert testimony from the defense as better than that of Dr. Lakin’s testimony is irrelevant

to the admissibility of Dr. Lakin’s testimony. See Gen. Motors Corp. v. Pegues, 738 So. 2d

746, 753 (Miss. Ct. App. 1998) (“When the evidence is conflicting, we defer to the jury’s

determination of the credibility of witnesses and the weight of their testimony.” (internal

quotation marks omitted) (quoting Ducker v. Moore, 680 So. 2d 808, 811 (Miss. 1996))).

This Court has held that the winner in a battle of experts is to decided by a jury. Hill, 26 So.

3d at 322; see, e.g, Bickham v. Grant, 861 So. 2d 299, 307 (Miss. 2003).

¶24. This brings us to the real problem in this case: it is not so much the testimony of Dr.

Lakin as it is the fact that the SBS/AHT diagnosis has been increasingly questioned in recent

years. The Court of Appeals recognized this difficulty in its decision as did the trial judge,

who stated that he was not “insensitive to the fact that there may be difficulty or some

difference of opinion about that which is called SBS.” If we wish to take it upon ourselves

11 to determine that some theory has been debunked, that is certainly within our power if

appropriately supported by the science. But we must continue to remember that we are

jurists, not scientists. Judges are increasingly asked to make scientific determinations based

on contradictory science despite not being qualified to do so. Science by nature is seldom

certain, and thus the validation of a proposed submission need not be universally accepted.

Daubert, 509 U.S. at 590. The fact that experts hold opposite views does not make the

testimony inadmissible.3

II. Remaining Issues on Appeal

¶25. Clark raises six additional arguments not addressed by the Court of Appeals.4 Since

we are reinstating the trial court’s judgment and affirming Clark’s conviction, we address

each remaining issue in turn below.

A. Whether the evidence at trial was insufficient to establish guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence.

3 We acknowledge the academic debates surrounding SBS/AHT. See AK Choudhary et al., Consensus Statement on Abusive Head Trauma in Infants and Young Children, 48 Pediatric Radiology 1048 (2018); Joëlle A. Moreno & Brian Holmgren, Dissent Into Confusion: The Supreme Court, Denialism, and the False “Scientific” Controversy Over Shaken Baby Syndrome, 2013 Utah L. Rev. 153; but see Randy Papetti et al., Outside the Echo Chamber: A Response to the “Consensus Statement on Abusive Head Trauma in Infants and Young Children”, 59 Santa Clara L. Rev. 299 (2019). As we make this acknowledgment, however, we recognize that the centerpiece of this case is expert witness testimony, and it is ultimately the “responsibility of the jury and not the appellate court to draw conclusions based on the evidence presented at trial. A reviewing court ‘may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.’” Moreno & Holmgren, at 209 (emphasis added) (quoting Cavazos v. Smith, 565 U.S. 1, 2, 132 S. Ct. 2, 181 L. Ed. 2d 311 (2011)). 4 The issues provided in subheadings A through F are slightly modified for clarity from Clark’s “Corrected Brief of Appellant.”

12 ¶26. In his first remaining argument on appeal, Clark argues that the evidence presented

at trial was insufficient to establish guilt beyond a reasonable doubt and to the exclusion of

every reasonable hypothesis of innocence. Clark points to Weathersby v. State, 147 So. 481,

482 (1933), arguing that since no substantial evidence to contradict Clark’s version of events

was presented at trial, the trial court was required to enter a directed verdict. Clark qualifies

his argument that the evidence presented in this case requires a review of Weathersby:

“[a]bsent the opinion testimony of the expert witness, the conviction must be evaluated in

light of the Weathersby rule . . . .”

¶27. A review of the record and Clark’s motions for directed verdict reveals that while

Clark made a similar argument before the trial court, he failed to specifically raise an

argument regarding Weathersby. Since Clark failed to raise the Weathersby rule as a

defense before the circuit court, the issue is procedurally barred on appeal. Jones v. State,

154 So. 3d 872, 877 (Miss. 2014) (citing Page v. State, 64 So. 3d 482, 489 (Miss. 2011)).

Procedural bar notwithstanding, we find Clark’s Weathersby argument to be without merit.

¶28. In Weathersby, we recognized a rule

in this state that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Weathersby, 147 So. at 482 (citing Houston v. State, 78 So. 182 (Miss. 1918)). Indeed,

“[w]here the Weathersby rule applies and the defendant’s version affords an absolute legal

defense, the defendant is entitled to a directed verdict of acquittal.” Green v. State, 631 So.

2d 167, 174 (citing Blanks v. State, 547 So. 2d 29, 33 (Miss. 1989)). Additionally,

13 “Weathersby does not require the State to offer evidence excluding the defendant’s theory

from the realm of possibility; rather, the State must offer evidence that substantially

contradicts the material particulars of the defendant’s version of the incident.” Booker v.

State, 64 So. 3d 965, 974 (Miss. 2011) (citing Weathersby, 147 So. at 482).

¶29. In Booker, we looked to expert witness testimony to determine whether a defendant’s

version of events were unlikely. Id. at 975. In that case, a pathologist expert witness

testified that while the defendant’s version of events were possible, the same version of

events were “very unlikely” based on the expert’s assessment of statistical probabilities

associated with the expert’s observations. Id. We opined, “this expert testimony, admissible

under our rules of evidence, substantially contradicted Booker’s version of the incident and

created a question for the jury to resolve.” Id. at 975-76 (footnote omitted).

¶30. Here, as in Booker, Clark’s alternative causes for Kyllie’s death were substantially

contradicted by the expert witness testimony of Dr. Lakin. As discussed above, Dr. Lakin

testified that “in [her] opinion, that combination of findings with a lack of significant history

would, in [her] opinion, be consistent with abusive head trauma or nonaccidental trauma.”

We have already upheld the circuit court’s determination under Daubert that Dr. Lakin’s

testimony was admissible. Her testimony contradicts Clark’s alternative theories of Kyllie’s

injuries such that a question was created for the jury to resolve. See Booker, 64 So. 3d at

975-76. Indeed, Clark’s own Weathersby argument is qualified by the condition that Dr.

Lakin’s testimony was admitted erroneously—an argument that we have already rejected.

Therefore, Clark’s Weathersby argument is without merit.

¶31. In furtherance of his broader argument, Clark points to testimony which, in his

14 opinion, shows that insufficient evidence was presented to support the jury’s guilty verdict.

Clark points to conflicting evidence presented to the jury that indicated, among other things,

that Kyllie was dropped on two occasions prior to the time Clark was alleged to have

committed the crime. He additionally discusses dueling expert witness testimony from Dr.

Shuman and Dr. Lakin regarding potential and probable causes of Kyllie Clark’s injuries and

subsequent death, including testimony calling into question the State’s timeline of events.

Further, Clark argues that testimony presented fails to negate other reasonable hypotheses

as to the cause of Kyllie’s death: that Kyllie was either injured at birth, through a fall, by

being dropped days before Clark had exclusive custody of Kyllie or that Sudden Infant Death

Syndrome (SIDS) occurred.5

5 On January 26, 2021, we received Clark’s letter pursuant to Mississippi Rule of Appellate Procedure 28(k). M.R.A.P. 28(k). In the letter, in addition to highlighting recent literature regarding AHT, Clark argues that our recent decision in Hampton v. State, No. 2019-KA-01304-SCT, 2021 WL 218983, at *1 (Miss. Jan. 21, 2021), supports his argument that the State failed to prove that Clark was guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. See, e.g., Steele v. State, 544 So. 2d 802, 808 (Miss. 1989) (citing Leflore v. State, 535 So. 2d 68, 70 (Miss. 1988)). We disagree. In Hampton, we reversed Hampton’s conviction for felony child abuse where “Dr. Lakin testified only to the severity of the burns and that the burns appeared to be more than a few days old.” Hampton, 2021 WL 218983, at *9. Additionally, Dr. Lakin “only went so far as to state that in her professional opinion, a caregiver aware of such burns would seek medical care for the burns.” Id. These statements constituted Dr. Lakin’s sole testimony regarding the victim’s burn injury. Id. Therefore, we held that “[e]ven though one could reasonably conclude from the evidence presented that Hampton knew about LRJ’s injury and failed to seek necessary medical care for it, one cannot infer from this same evidence that because Hampton did not seek medical care for LRJ she must have knowingly or recklessly caused the injury.” Id. at *10 (footnote omitted). Since the State failed to prove Hampton’s guilt beyond a reasonable doubt to the exclusion of every reasonable hypothesis consistent with innocence, the State’s burden was not met. See id. In contrast, we affirmed Hampton’s conviction for felonious starvation under the same standard where “Dr. Lakin provided evidence that excluded the possibility that LRJ’s malnourished state was the result of some sort of medical condition . . . [a]nd she and other witnesses provided evidence that

15 his malnourishment continued while in Hampton’s care.” Id. at *9.

Dr. Lakin’s testimony in Clark’s case is more similar to that provided in Hampton for the felonious starvation charge. For example, Clark asserts that the State failed to exclude the reasonable, non-criminal hypotheses advanced by Clark for Kyllie’s death including SIDS, an accidental dropping, that Kyllie was stepped on and CPR performed on Kyllie. In support, Clark points to various portions of testimony regarding both the occurrence of potential non-criminal, accidental causes of Kyllie’s injuries and testimony from Dr. Lakin admitting either that the same causes were either possible or could not be ruled out. In isolation, Clark’s argument about Hampton could work. Clark, however, ignores Dr. Lakin’s testimony that does exclude these alternative theories.

Specifically, after the State asked Dr. Lakin for an approximation of the time Kyllie sustained her injuries to a medical certainty, Dr. Lakin responded, “[b]ased on the history that was given to me, it would have to be sometime between her most recent normal activity, it would be sometime after her most recent normal activity to the time when she was found unconscious. And so in my experience, the symptoms are immediate.” The State then asked, “[a]nd the last time of normal activity, as given to you in the history, was?” Dr. Lakin responded, “5:00 when she ate.” Therefore, contrary to Clark’s argument, the State did prove Clark’s guilt beyond a reasonable doubt to the exclusion of hypotheses consistent with innocence that rely on the fact that Kyllie’s injuries occurred prior to the period where Clark had sole custody of Kyllie. When questioned about the elimination of SIDS as a cause of Kyllie’s death on cross-examination, Dr. Lakin provided that “[t]his child had multiple abnormal physical findings — the subdural hemorrhage, the rib fractures, the retinal — multilayer retinal hemorrhages. You can’t even entertain the possibility of sudden infant death syndrome because there are so many abnormalities.” Thus, the State did prove Clark’s guilt to the exclusion of SIDS as a possibility for Kyllie’s death.

Further, Dr. Lakin testified as her conclusion as to Kyllie’s death: “[w]ell, the injuries that the patient did sustain were consistent with abusive head trauma, so it’s a nonaccidental mechanism which involves some type of very severe acceleration and deceleration which very much could have been a shaking — a severe shaking episode.” Finally, Dr. Lakin testified that “[i]n my opinion, the injuries that killed Kyllie was [sic] a severe acceleration/deceleration injury, which is consistent with shaking, and it is consistent with abusive head trauma. And that is my opinion.” Given Dr. Lakin’s extensive testimony regarding the cause of Kyllie’s injuries and death and her insistence that, based on her medical opinion, Kyllie’s injuries and death were the result of a nonaccidental event consistent with AHT, the State was able to exclude Clark’s alternative theories consistent with innocence and, therefore, Clark’s reliance on Hampton is misplaced.

16 ¶32. When the evidence is viewed in the light most favorable to the State, it is clear that

a rational trier of fact could have found the essential elements of depraved-heart murder

beyond a reasonable doubt. See Sanford, 247 So. 3d at 1244. The elements of depraved-

heart murder are as follows: “[t]he killing of a human being without the authority of law by

any means or in any manner . . . [w]hen done in the commission of an act eminently

dangerous to others and evincing a depraved heart, regardless of human life, although

without any premeditated design to effect the death of any particular individual[.]”

Montgomery v. State, 253 So. 3d 305, 316 (Miss. 2018) (alterations in original) (internal

quotation marks omitted) (quoting Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014)).

¶33. First, there was evidence that Kyllie Clark was killed. Second, the cause of Kyllie’s

injuries and resulting death, in Dr. Lakin’s opinion, supported a finding that her cause of

death was the result of acts imminently dangerous and evincing a depraved heart. See id.

To that end, Dr. Lakin testified extensively that Kyllie’s condition was consistent, in her

opinion, with AHT or nonaccidental trauma. Moreover, Dr. Lakin testified that injuries

consistent with those sustained by Kyllie are possibly caused by the mechanism of “very

rapid acceleration and deceleration, which include shaking as a possible mechanism.”

Therefore, despite conflicting testimony elicited at trial, when viewed in the light most

favorable to the State, we find that a rational trier of fact could have found the essential

elements of depraved-heart murder beyond a reasonable doubt. Thus, Clark’s argument that

insufficient evidence was presented to support the jury’s finding that he was guilty beyond

is without merit.

B. Whether, under Johnson v. United States, 576 U.S. 591,

17 135 S. Ct. 2551, L. Ed. 2d 569 (2015), both Mississippi Code Sections 97-3-19(2)(f) and 97-5-39(2)(c) are unconstitutionally vague.

¶34. Clark argues that sections 97-3-19(2)(f) and 97-5-39(2)(c) of the Mississippi Code are

unconstitutionally vague. Section 97-3-19(2)(f) provides that

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

....

(f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to a commit such felony[.]

Miss. Code Ann. § 97-3-19(2)(f) (Rev. 2014). Section 97-5-39(2)(c) provides the following:

(2) Any person shall be guilty of felonious child abuse in the following circumstances:

(c) If serious bodily harm to any child actually occurs, and if the person shall intentionally, knowingly, or recklessly:

(i) Strike any child on the face or head; (ii) Disfigure or scar any child; (iii) Whip, strike, or otherwise abuse any child[.]

Miss. Code Ann. § 97-5-39(2)(c) (Rev. 2014).

¶35. Clark specifically takes issue with section 97-5-39(2)(c)(iii) and its so-called “catch-

all” language, “otherwise abuse any child.” Clark contends that the United States Supreme

Court, in Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, L. Ed. 2d 569 (2015),

held a provision similar to Section 97-5-39(2)(c)(iii) unconstitutionally vague. In Johnson,

the Court examined 18 U.S.C. § 924(e)(2)(B), the statute defining a “violent felony” under

18 the Armed Career Criminal Act of 1984 as, among other things, “any felony that ‘involves

conduct that presents a serious potential risk of physical injury to another.’” See id. at 593

(internal quotation marks omitted) (quoting 18 U.S.C. § 924(e)(2)(B)). This “residual

clause” was applied to a Minnesota offense of “unlawful possession of a short-barreled

shotgun.” Id. at 594.

¶36. The Johnson Court noted two features that left the residual clause at issue

unconstitutionally vague: (1) the clause “leaves grave uncertainty about how to estimate the

risk posed by a crime” and “ties the judicial assessment of risk to a judicially imagined

‘ordinary case’ of a crime, not to real-world facts or statutory elements” and (2) the “clause

leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.”

Id. at 597-98. In “combining indeterminacy about how to measure the risk posed by a crime

with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,”

the Court held that “the residual clause produces more unpredictability and arbitrariness than

the Due Process Clause tolerates.” Id. at 598.

¶37. Johnson is distinguishable here. We have recognized that “[a] criminal statute must

provide a person of ordinary intelligence a reasonable opportunity to know what conduct is

prohibited.” Faraga v. State, 514 So. 2d 295, 303 (Miss. 1987) (citing Cumbest v. State, 456

So. 2d 209 (Miss. 1984)). In Rubenstein v. State, 941 So. 2d 735, 772 (Miss. 2006) (quoting

Faraga, 514 So. 2d at 303), we held that Mississippi Code Section 97-5-39(2)(a) was not

unconstitutionally vague, reasoning that Section 97-5-39(a) afforded “‘a person of ordinary

intelligence a reasonable opportunity to know what conduct is prohibited.’” The subsection

at issue in Rubenstein read as follows:

19 Any person who shall intentionally (I) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child . . . .

Id. (alteration in original) (quoting Miss. Code Ann. § 97-5-39(2)(a)). While the Rubenstein

Court was only concerned with Section 97-5-39(2)(a) and did not analyze section 97-5-

39(2)(c)(iii), we now hold that Section 97-5-39(2)(c)(iii), which contains the same “otherwise

abuse” language as Section 97-5-39(2)(a), is also not unconstitutionally vague. The language

in Section 97-5-39(2)(a) connects both the action “otherwise abuse” with “in such a manner

as to cause serious bodily harm . . . .” Id. Likewise, the language in Section 97-5-

39(2)(c)(iii) requires “serious bodily harm to any child” to occur and that the defendant

“intentionally, knowingly or recklessly . . . otherwise abuse any child[.]”

¶38. Section 97-5-39(f) defines “serious bodily harm” for the purposes of section 97-5-

39(2) as

any serious bodily injury to a child and includes, but is not limited to, the fracture of a bone, permanent disfigurement, permanent scarring, or any internal bleeding or internal trauma to any organ, any brain damage, any injury to the eye or ear of a child or other vital organ, and impairment of any bodily function.

Miss. Code Ann. § 97-5-39(f) (Rev. 2014) (internal quotation marks omitted). Paragraph (g)

further clarifies that nothing in paragraph (c) “shall preclude a parent or guardian from

disciplining a child of that parent or guardian, or shall preclude a person in loco parentis to

a child form disciplining that child . . . .” Miss. Code Ann. § 97-5-39(2)(g) (Rev. 2014).

¶39. Pointing to examples such as spanking, Clark asserts that ordinary people will differ

on what actions constitute abuse of a child. We disagree. When viewed together, the

20 element of serious bodily harm in Section 97-5-39(2)(c)(iii), along with the clarification in

Section 97-5-39(2)(g) that discipline of a child is not precluded under paragraph (c), negates

any concern that ordinary people would differ with regard to what actions constitute abuse

of a child. In other words, we are unpersuaded that “a person of ordinary intelligence” would

lack “a reasonable opportunity to know what conduct is prohibited” when section 97-5-

39(2)(c)(iii) requires serious bodily harm and section 97-5-39(2)(g) carves out acts of

discipline from the same offense. Faraga, 514 So. 2d at 303 (citing Cumbest, 456 So. 2d

209); c.f. Wolfe v. State, 743 So. 2d 380, 385 (Miss. 1999) (“As long as the discipline is

moderate and reasonable in light of the age and condition of the child, and other surrounding

circumstances, the parent or custodian will not incur criminal liability [for felony child

abuse].”).Thus, we find Clark’s second additional assignment of error without merit.

C. Whether the circuit court erroneously instructed the jury on the lesser nonincluded offense of depraved-heart murder when Clark did not request such an instruction and whether, as a result, the circuit court violated Clark’s rights per the Sixth and Fourteenth Amendment and Mississippi Constitution article 3, section 26.

¶40. Again, Clark was convicted of depraved-heart murder under Mississippi Code Section

97-3-19(1)(b). Count I of Clark’s indictment reads, in pertinent part:

That [Joshua Eric Hawk Clark] . . . in said County and State between the 25th day of October, A.D., 2007 and the 6th day of January, 2008, did wilfully, unlawfully and feloniously with or without malice aforethought or deliberate design kill and murder Kiley Clark, a human being, having a date of birth of September 15, 2007, by violently shaking the child, causing rib fractures and other internal injuries resulting in the death of Kiley [sic] Clark, while he the said [Joshua Eric Hawk Clark] was engaged in the crime of Felony Child Abuse, all in violation of Mississippi Code, Annotated, Sections 97-3-19(2)(f) and 97-5-39(2)(a)[.]

21 ¶41. Section 97-3-19(2) is Mississippi’s capital murder statute. See Miss. Code Ann. § 97-

3-19(2) (Rev. 2014). Clark argues that Count I failed to allege that Clark acted with a

depraved heart and that the indictment instead implies that whether Clark acted with a

depraved heart is irrelevant. Section 97-3-19(1)(b) provides that

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:

(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be second-degree murder[.]

Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014).

¶42. According to Clark, his rights under the Sixth and Fourteenth Amendments, as well

as article 3, section 26, of the Mississippi Constitution, were violated since the jury was

allowed to convict him via a depraved-heart-murder theory when he was not afforded notice

of the nature and cause of the State’s accusation. Further, citing Gause v. State, 65 So. 3d

295, 300 (Miss. 2011), abrogated on other grounds by Hall v. State, 127 So. 3d 202, 207

(Miss. 2013), Clark argues that a lesser, non included offense may not be given as an

instruction absent a request for the same from the defendant. Finally, pointing to Johnson

v. State, 52 So. 3d 384, 397 (Miss. Ct. App. 2009), Clark argues that no evidence of malice,

wanton recklessness or depraved heart was presented. In response, citing Wheeler v. State,

536 So. 2d 1341, 1344 (Miss. 1988), the State argues that Section 97-3-19 “implicitly

recognizes the established doctrine that simple murder is a lesser included offense of capital

murder.”

22 ¶43. Clark’s reliance on Gause and Johnson is misplaced. In Gause, we held that

“burglary is not a lesser-included offense of capital murder, and because the State was not

entitled to a lesser-offense instruction[,]” the “trial court clearly erred by granting the State’s

request for an instruction on burglary[.]” Gause, 65 So. 3d at 302. In Johnson, the Court of

Appeals, recognizing that “manslaughter is a lesser offense of murder[,]” determined that

there was insufficient evidence to support Johnson’s conviction for depraved-heart murder.

Gause, 65 So. 3d at 397 (citing McCune v. State, 989 So. 2d 310, 316 n.13 (Miss. 2008)).

¶44. We have held that “[a]s a matter of common sense, every murder done with deliberate

design to effect the death of another human being is by definition done in the commission

of an act imminently dangerous to others and evincing a depraved heart, regardless of human

life.” Schuck v. State, 865 So. 2d 1111, 1119 (Miss. 2003), disagreed with by Dilworth v.

State, 909 So. 2d 731, 735 n.4 (Miss. 2005)6; see Mallett v. State, 606 So. 2d 1092, 1095

(Miss. 1992) (“[E]very murder done with deliberate design to effect the death of another

human being is by definition done in the commission of an act imminently dangerous to

others and evincing a depraved heart, regardless of human life.”); see also White v. State,

964 So. 2d 1181, 1187 (Miss. Ct. App. 2007) (“Although the statutory language defining

depraved heart murder does not clearly state the requirement for deliberate design or malice

aforethought, depraved heart murder involves an act so reckless that malice or deliberate

design is implied.” (internal quotation marks omitted) (quoting Chatman v. State, 952 So.

6 In Dilworth, we disagreed with Schuck and other precedent regarding “standard of review for sufficiency and weight of the evidence”—positions that “we retreated from” in Bush v. State, 895 So. 2d 836, 844 n.3 (Miss. 2005), abrogated on other grounds by Little v. State, 233 So. 3d 288, 292 (Miss. 2017). Dilworth, 909 So. 2d at 735 n.4.

23 2d 945, 948 (Miss. Ct. App. 2006))). Therefore, we find Clark’s argument—that depraved-

heart murder is a lesser, rather than a lesser-included, offense of capital murder—is without

merit and that the circuit court did not err by providing a depraved-heart-murder instruction.

¶45. As to Clark’s argument that he did not receive notice of a criminal charge for

depraved-heart murder, Mississippi Code Section 97-3-19(3) provides that “[a]n indictment

for murder or capital murder shall serve as notice to the defendant that the indictment may

include any and all lesser included offenses thereof, including, but not limited to,

manslaughter.” Miss. Code Ann. § 97-3-19(3) (Rev. 2014). Count I of Clark’s indictment

alleging that he “did wilfully, unlawfully and feloniously with or without malice aforethought

or deliberate design kill and murder Kiley [sic] Clark”7 while engaged in the crime of felony

child abuse clearly served as notice under Mississippi Code Section 97-3-19(3) that his

indictment would include any and all lesser-included offenses, including depraved-heart

murder. Therefore, we find Clark’s third additional assignment of error without merit.

D. Whether, by refusing to separate the trial into a guilt phase and a penalty phase so that jurors opposed to the death penalty could sit at the guilt phase, the circuit court violated Clark’s Sixth and Fourteenth Amendment rights to a fair cross section of the community on the jury.

¶46. Clark further asserts that his Sixth and Fourteenth Amendment rights were violated

when eight jurors that expressed opposition to the death penalty were struck from the jury.

Additionally, Clark argues that by excluding otherwise qualified jurors that were opposed to

7 See Hawkins v. State, 101 So. 3d 638, 642 (Miss. 2012), (general discussion about how “depraved heart murder ‘subsumes’ deliberate design murder . . . .” (quoting Ruttley v. State, 746 So. 2d 872, 879 (Miss. Ct. App. 1998))).

24 the death penalty, the State denied Clark a fair and impartial jury and effectively benefitted

from extra peremptory challenges. Citing Mississippi Code Section 99-19-101(3), Clark

argues that killing through child abuse cannot be considered an aggravating factor since all

persons convicted of capital murder through child abuse are guilty of capital murder. See

Miss. Code Ann. § 99-19-101(3) (Rev. 2015) (“For the jury to impose a sentence of death,

it must unanimously find in writing the following: . . . (b) That sufficient aggravating

circumstances exist as enumerated in subsection (5) of this section; and (c) That there are

insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the

aggravating circumstances.”).

¶47. Specifically, Clark asserts that there were abundant mitigating factors and only one

aggravating circumstance—that Kyllie was killed during the course of child abuse. And

according to Clark, the fact that death occurred through child abuse does not narrow the class

of eligible persons for the death penalty. Thus, Clark contends there was no need for a

second jury since no aggravating factors existed and the mitigating factors were

overwhelming. Clark cites two United States Supreme Court cases for the proposition that,

notwithstanding the language of Mississippi Code Sections 99-19-101(3) and 99-19-

101(5)(d), the fact that a killing occurred during the commission of felonious child abuse

may not be constitutionally considered since such a fact does not “narrow the class” of

persons eligible for the death penalty.

¶48. First, Clark points to McClesky v. Kemp, 481 U.S. 279, 303-04, 107 S. Ct. 1756, 95

L. Ed. 2d 262 (1987) (footnote omitted) (citations omitted), in which the Court held that “a

State must ‘narrow the class of murderers subject to capital punishment,’ . . . by providing

25 ‘specific and detailed guidance’ to the sentencer.’” Second, and in further support of his

argument that felonious child abuse may not constitutionally be used as an aggravating

factor, Clark cites Arave v. Creech, 507 U.S. 463, 474, 113 S. Ct. 1534, 1542, 123 L. Ed. 2d

188 (1993). There, the Court held that “a State’s capital sentencing scheme . . . must

‘genuinely narrow the class of persons eligible for the death penalty.’” Id. (quoting Zant v.

Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 2742, 77 L. Ed. 2d 235 (1983)). Further, the

Court recognized that “[w]hen the purpose of statutory aggravating circumstance is to enable

the sentencer to distinguish those who deserve capital punishment from those who do not,

the circumstance must provide a principled basis for doing so.” Id. (citing Lewis v. Jeffers,

497 U.S. 764, 776, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990)).

¶49. We have resolved this issue. In Galloway v. State, 122 So. 3d 614, 680 (Miss. 2013)

(citing Thorson v. State, 895 So. 2d 85, 105 (Miss. 2004)), we recognized that “the felony-

murder aggravator genuinely narrows the class of defendants eligible for the death penalty.”

In doing so, we reasoned that “[n]ot every defendant eligible for the death penalty will have

committed murder while in the course of sexual battery or the other statutorily enumerated

felonies.” Id. (emphasis added) (citing Miss. Code Ann. 97-3-19 (Rev. 2006)); see, e.g.

Loden v. Epps, No. 1:10CV311-NBB, 2013 WL 5243670, at *49 (N.D. Miss. Sept. 18, 2013)

(“The Mississippi statute narrows the class of capital defendants who are eligible for the

death penalty by its definition of capital murder, see Miss. Code Ann. § 97-3-19(2), and

through the use of aggravating circumstances.” (citing Miss. Code Ann. § 99-19-101)), aff’d

sub nom. Loden v. McCarty, 778 F.3d 484 (5th Cir. 2015). Indeed, we recognized in

Galloway the United States Supreme Court’s stance on aggravating circumstances as they

26 relate to a sentencing phase. Galloway, 122 So. 3d at 680 (citing Lowenfield v. Phelps, 484

U.S. 231, 246, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988)).

¶50. In Lowenfield, the Court, while assessing Louisiana’s capital murder scheme,

provided that “the fact that the aggravating circumstance duplicated one of the elements of

the crime does not make this sentence constitutionally infirm.” Lowenfield, 484 U.S. at 246.

Here, just as in Lowenfield, the Mississippi “scheme narrows the class of death-eligible

murderers and then at the sentencing phase allows for the consideration of mitigating

circumstances and the exercise of discretion.” Id. “The Constitution requires no more.” Id.

¶51. Additionally, Clark acknowledges that, under Mississippi Code Section 99-19-

101(5)(d), “felonious abuse . . . of a child” is an aggravating factor for the purposes of

section 99-19-101(3) sufficient to justify a jury’s imposition of the death penalty. Miss. Code

Ann. § 99-19-101(3) (Supp. 2019). We have recognized that “[f]elonious child abuse is an

underlying felony, as well as an aggravator, in Mississippi’s capital-sentencing scheme.”

Moffett v. State, 156 So. 3d 835, 863 (Miss. 2014) (emphasis added) (citing Miss. Code Ann.

§§ 99-3-19(2)(f), 99-19-105(5)(d) (Rev. 2007)). Moreover, “evidence of an underlying crime

can properly be used both to elevate the crime to capital murder and as an aggravating

circumstance.” Id. at 864 (internal quotation mark omitted) (quoting Ross v. State, 954 So.

2d 968, 1014 (Miss. 2007)). And “[t]he United States Supreme Court has held that the use

of an underlying felony as an aggravator is not a constitutional error.” Id. (citing Tuilaepa

v. California, 512 U.S. 967, 971-72, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994)). Thus,

Clark’s constitutional attack regarding felonious child abuse’s use as both an aggravator in

sentencing and an element to elevate a homicide to capital murder is without merit.

27 ¶52. Next, citing Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579

(1979), Clark argues that the exclusion of a distinctive group—here potential jurors who

expressed opposition to the death penalty—in the community violates the fair-cross-section

requirement of the Sixth and Fourteenth Amendments. We have recognized that Duren

provides the test for a prima facie violation of the fair-cross-section requirement of the Sixth

Amendment. Yarbrough v. State, 911 So. 2d 951, 954 (Miss. 2005). To succeed on this

assignment of error, Clark would need to show

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion fo the group in the jury selection process.

Id. at 955 (citing Duren, 439 U.S. at 364).

¶53. We have previously addressed the veracity of an argument similar to Clark’s argument

here. In Wilcher v. State, 863 So. 2d 719, 767 (Miss. 2003) (citations omitted) quoting

Jordan v. State, 786 So. 2d 987, 1028-29 (Miss. 2001)), we reiterated that

a prospective juror’s views on the death penalty do not make one a member of a distinctive class protected by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny. . . . [E]xcusing all jurors who have conscientious scruples against the death penalty does not deny a defendant his right to a representative cross-section of the community.

In Wilcher, we also recognized that excluding jurors who express an inability to impose the

death penalty does not equate to a fair-cross-section violation since the same jurors do not

“constitute a distinctive group for fair cross section purposes.” Id. at 768 (quoting Buchanan

v. Kentucky, 483 U.S. 402, 415, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987)); Lockhart v.

McCree, 476 U.S. 162, 177, 106 S. Ct. 1758, 1767, 90 L. Ed. 2d 137 (1986) (“[W]e conclude

28 that ‘Witherspoon-excludables’ do not constitute a ‘distinctive group’ for fair-cross-section

purposes, and hold that ‘death qualification’ does not violate the fair-cross-section

requirement.”8).

¶54. Thus, Clark has failed to establish that his Sixth and Fourteenth Amendment rights

to a fair cross section were violated by the exclusion of jurors opposed to the death penalty

since he is unable to show that jurors opposed to the death penalty constitute a “distinctive

group” for fair-cross-section purposes. Since jurors opposed to the death penalty do not

constitute a “distinctive group,” we decline to address the remaining two requirements for

a fair-cross-section violation. Therefore, Clark’s fourth additional assignment of error is

without merit.

E. Whether the circuit court erred by excluding relevant defense evidence and permitting irrelevant prosecution evidence and whether such errors denied Clark a fair trial in violation of the Fourteenth Amendment.

¶55. Clark argues that the circuit court erred in three evidentiary rulings with each error

constituting a denial of a fair trial and a violation of Clark’s Sixth and Fourteenth

Amendment rights. Each alleged error is addressed in turn below.

i. Whether the circuit court permitted irrelevant, highly prejudicial evidence regarding compensation of Clark’s expert witness, Dr. Shuman.

¶56. In closing argument, the State commented on Clark’s failure to subpoena the doctor

8 “Witherspoon-excludables” are “those prospective jurors who state[] that they could not under any circumstances vote for the imposition of the death penalty . . . .” Lockhart, 476 U.S. at 162 (citing Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)).

29 that performed the autopsy on Kyllie Clark. Further, the State argued, with respect to Clark’s

expert witness, Dr. Shuman, that “[t]hey had rather have a hired gun come in here from

Florida, you pay him $10,000, he’ll get up there and tell you anything you want to hear. Dr.

Lakin gets paid nothing.” The State also commented on Dr. Shuman’s compensation with

the following statement: “[i]f you pay some expert $8500 to come up here for an hour’s

testimony, they’ll say it.”

¶57. Clark argues that the circuit court permitted irrelevant, highly prejudicial evidence

regarding compensation for Dr. Shuman’s expert testimony. The State argues that any such

abuse must cause prejudice and harm and that Clark has failed to demonstrate the same and

that evidence of witness bias is admissible under Mississippi Rule of Evidence 616 to attack

credibility.

¶58. Rule 616 provides that “[e]vidence of a witness’s bias, prejudice, or interest—for or

against any party—is admissible to attack the witness’s credibility.” MRE 616. And “[i]n

general, evidence of an expert witness’s possible financial economic bias is relevant and

admissible.” Wright v. Turan-Foley Motors, Inc., 269 So. 3d 160, 168 (Miss. Ct. App.

2018). Thus, the trial court did not err by allowing the State to discuss financial

compensation for Dr. Shuman’s testimony in closing arguments to show Dr. Shuman’s

potential economically motivated bias.

¶59. Clark argues in the alternative that any probative value in testimony concerning Dr.

Shuman’s compensation was far outweighed by its prejudicial effect and, therefore, was

inadmissible under Rule 403 of the Mississippi Rules of Evidence. Rule 403 provides that

The court may exclude relevant evidence if its probative value is substantially

30 outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

MRE 403.

¶60. “The trial court generally is allowed wide discretion concerning the admission of

evidence offered to suggest bias on the part of a witness against the defendant.” Ambrose

v. State, 254 So. 3d 77, 100 (Miss. 2018) (citing Tillis v. State, 661 So. 2d 1139, 1142 (Miss.

1995)). Further, “[w]e will affirm the trial court’s exercise of discretion unless the ruling

resulted in prejudice to the accused.” Id. (internal quotation marks omitted) (quoting

Anthony v. State, 108 So. 3d 394, 397 (Miss. 2013)).

¶61. The Court of Appeals’ decision in Dao v. State, 984 So. 2d 352, 360-61 (Miss. Ct.

App. 2007), is instructive. There, the trial judge did not say that he “found the evidence more

probative than prejudicial.” Id. at 361. Even so, the trial court in Dao “heard arguments

from both parties regarding the admissibility of the evidence prior to reaching the conclusion

that it should be admitted for the limited purpose of showing bias.” Id. Likewise, we have

recognized that a trial court may implicitly weigh undue prejudice against probative value

even when a trial court does not use “magic words” regarding the danger of unfair prejudice

and probative value of evidence but ultimately rules on admissibility after hearing arguments

from both parties. Hoops v. State, 681 So. 2d 521, 531 (Miss. 1996) (internal quotation

marks omitted), abrogated on other grounds by Willis v. State, 300 So. 3d 999, 1009 n. 2

(Miss. 2020).

¶62. Here, Clark filed a motion in limine, as well as a renewed motion in limine, seeking

to prohibit questions regarding expert-witness compensation. The Court denied Clark’s

31 motion in limine after hearing argument from Clark and the State on the issue. Additionally,

and following the State’s inference during closing argument of paying a “hired gun” $10,000

to say “anything you want to hear[,]” Clark’s counsel objected: “[o]bjection. That statement

is not support by the evidence.” The State responded: “[t]his is argument and all reasonable

inferences.” It is clear from the record that the circuit court ruled on admissibility after

hearing argument from both parties not only following the court’s ruling on Clark’s motion

in limine but also following Clark’s objection during the State’s closing argument. We

therefore find that the circuit court did not err, because it implicitly weighed the probative

value of evidence regarding Dr. Shuman’s expert witness compensation and any undue

prejudice that would result from admission. Dao, 984 So. 2d at 361; see Hoops, 681 So. 2d

at 531.

ii. Whether the trial court improperly denied Clark the opportunity to cross-examine Dr. Lakin to show bias.

¶63. Citing United States v. Mayer, 556 F.2d 245, 250 (5th Cir. 1977),9 Clark also argues

that the trial court improperly disallowed impeachment evidence of Dr. Lakin in violation

of his Sixth Amendment Confrontation Clause rights. Specifically, Clark attempted to elicit

testimony regarding Dr. Lakin’s personal divorce and certain facts about Dr. Lakin’s child,

including bed-wetting and appointment of a guardian ad litem. According to Clark, this

information would show Dr. Lakin’s bias toward persons accused of child abuse. Clark’s

counsel, during cross-examination of Dr. Lakin, specifically asked questions regarding the

9 In that case, the United States Court of Appeals for the Fifth Circuit held that a trial judge frustrated Mayer’s full exercise of his Sixth Amendment rights by not allowing sufficient inquiry into the prosecution witness’ motivation to testify. Id.

32 appointment of a guardian ad litem and a psychologist for her two children. Following an

objection from the State, the court sent the jury out of the courtroom.

¶64. Outside of the presence of the jury, counsel for Clark argued that the appointment of

a guardian ad litem following report of a bed-wetting issue with one of her children showed

that “[Dr. Lakin] has a personal reason to bias her testimony in this case” “if she was

involved in that process[.]” The trial court responded:

You are attacking her – or at least revealing things that has got not one thing to do with this. The objection of the State will be sustained. You can make a proffer right now of whatever. I don’t know. You’re not going to ask her anymore questions. Just tell us what you think she will say.

In response to the trial court’s invitation for a proffer, Clark’s counsel requested the guardian

ad litem order be marked for identification, and it was marked Defendant’s Exhibit No. 7.

Then, Clark’s counsel stated that “[m]y presentation would be basically that this would relate

to her bias as opposed to medical that’s outside the medical context.”

¶65. The trial court concluded by discussing the scope of permissible cross-examination:

The Court: Now, everything – everything about the medical aspects of this, what she knows about this case is fair game.

Mr. Webb: Yes, sir.

The Court: Her qualifications and whatever. But I know of nothing that suggests what you’re trying to get at. You can ask her, if you’d like, if she’s biased, opinionated, prejudiced, or such thing in favor of child abuse –

Mr. Webb: Well, Your Honor –

The Court: – as a diagnosis.

While still outside the presence of the jury, Clark’s counsel then asked Dr. Lakin if she was

33 biased, to which she responded, “[o]f course I’m not biased.”

¶66. “Defendants in criminal cases have a fundamental constitutional right to be confronted

with the witnesses against them.” Hutto v. State, 227 So. 3d 963, 983 (Miss. 2017) (internal

quotation marks omitted) (quoting Armstead v. State, 196 So. 3d 913, 917 (Miss. 2016)).

“And ‘[t]he right of a criminal defendant . . . to cross examine witnesses against him is at the

heart of the [C]onfrontation [C]lause.’” Id. (alterations in original) (quoting Armstead, 196

So. 3d at 917). This right of confrontation extends to the full cross-examination of witnesses

“on every material point relating to the issue to be determined that would have a bearing on

the credibility of the witness and the weight and worth of his testimony.” Id. (internal

quotation mark omitted) (quoting Scott v. State, 796 So. 2d 959, 964 (Miss. 2001)).

Moreover, “Mississippi allows wide-open cross-examination of any matter that is relevant,

including the possible interest, bias, or prejudice of the witness.” Anthony v. State, 108 So.

3d 394, 397 (Miss. 2013) (emphasis added) (citing Meeks v. State, 604 So. 2d 748, 755

(Miss. 1992)).

¶67. But “[t]he trial court generally is allowed wide discretion concerning the admission

of evidence offered to suggest bias on the part of a witness against the defendant.” Ambrose,

254 So. 3d at 100 (citing Tillis, 661 So. 2d at 1142). Further, “[w]e will affirm the trial

court’s exercise of discretion unless the ruling resulted in prejudice to the accused.” Id.

(internal quotation marks omitted) (quoting Anthony, 108 So. 3d at 397). And

“[W]hile the [United States] Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of

34 the issues, or potential to mislead the jury.”

Id. at 100-01 (quoting Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727,

164 L. Ed. 2d 503 (2006)).

¶68. Further, “Rule 616 must be interpreted as it relates to other rules of evidence,

particularly [Rules] 104, 401 and 402.” Id. at 101 (internal quotation marks omitted) (quoting

Tillis, 661 So. 2d at 1142). Rule 402 provides, in part, that “[i]rrelevant evidence is not

admissible.” MRE 402. Rule 401 provides that “[e]vidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the evidence; and (b)

the fact is of consequence in determining the case.” MRE 401. Once again, the circuit court,

after halting defense counsel’s questioning of Dr. Lakin regarding her divorce, her child’s

bed-wetting and appointment of a guardian ad litem for her child, stated that “[y]ou are

attacking her – or at least revealing things that has got not one thing to do with this.”

¶69. While the circuit court did not perform an explicit Rule 401 relevancy test or a Rule

403 balancing test, after reviewing the record we find that the circuit court did not abuse its

discretion by prohibiting Clark’s counsel’s questioning on cross-examination regarding Dr.

Lakin’s personal divorce and matters related to her children, as the same evidence was

irrelevant per Rule 401 and, therefore, inadmissible under Rule 402. Indeed, the circuit court

appears to analyze the relevancy of Clark’s proffer: “[y]ou are . . . at least revealing things

that has got not one thing to do with this.” While not using the specific language of Rule

401, we find that the circuit court considered whether the evidence regarding Dr. Lakin’s

divorce and children had any tendency to make a fact of consequence in Clark’s case more

or less probable than they would have been without the same evidence. See MRE 401.

35 ¶70. Furthermore, the circuit judge “was present when the examination transpired and he

was in the best position to rule on its exclusion.” Wortham v. State, 883 So. 2d 599, 607

(Miss. Ct. App. 2004). The circuit court also allowed Clark to ask Dr. Lakin directly whether

she was biased in favor of a child abuse diagnosis. Dr. Lakin responded in the negative. We

therefore find that Clark was not prejudiced by the circuit court’s exclusion of evidence

concerning Dr. Lakin’s personal experiences with divorce or matters involving her children.

Even if the circuit court abused its discretion in excluding otherwise relevant evidence that

would have passed muster under a Rule 403 balancing test, Clark was still provided the

opportunity to elicit testimony from Dr. Lakin that specifically dealt with any alleged bias

in favor of child abuse diagnoses. To warrant reversal, “the admission or exclusion of

evidence must result in prejudice or harm . . . .” Ellis v. State, 856 So. 2d 561, 565 (Miss.

Ct. App. 2003) (quoting Jackson v. State, 594 So. 2d 20, 25 (Miss. 1992)). Thus, we find

this assignment of error to be without merit.

iii. Whether the circuit court erroneously denied Clark’s request to introduce evidence of Bethany Clark’s drug-related felony conviction.

¶71. Clark additionally argues that the trial court erred by disallowing testimony of

Bethany Clark’s prior drug conviction in violation of Mississippi Rule of Evidence 609(a).

Outside the presence of the jury, the trial court addressed the State’s motion in limine seeking

to exclude evidence of Bethany Clark’s drug-related felony conviction. The trial court

acknowledged that the State attempted to exclude evidence of the conviction for a non party

witness, making note of Mississippi Rule of Evidence 609. The State then responded that

the time between Kyllie Clark’s death and Bethany Clark’s drug conviction made such

36 evidence “absolutely collateral and irrelevant to the facts . . . .”

¶72. After recognizing that “this is evidence intended to attach the character, truthfulness,

and so forth of the witness by demonstrating she’s been convicted of a felony sometime after

all of this took place and was done[,]” the trial court, citing Rule 403, went on to determine

that evidence of Bethany Clark’s conviction “has little probative value.” Further, the court

reasoned that “there will be adequate testimony to indicate [Bethany Clark’s] drug use . . .”

and decided to exclude the conviction evidence.

¶73. Rule 609(a) provides, in pertinent part, the following:

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, when the witness is not a party;

MRE 609(a). And again, Rule 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

¶74. While Bethany Clark is certainly a nonparty and Clark attempted to introduce

evidence of a felony conviction to attack Bethany Clark’s character for truthfulness, Clark

overlooks the requirement for a Rule 403 analysis contained in Rule 609(a)(1)(A). As

discussed above, the trial court performed a Rule 403 balancing test and determined that

37 evidence of Bethany Clark’s subsequent conviction held little probative value.

¶75. “[T]he standard of review regarding Rule 403 determinations is an “abuse of

discretion.”” Fitch v. Valentine, 959 So. 2d 1012, 1022 (Miss. 2007) (alteration in original)

(internal quotation mark omitted) (quoting Baldwin v. State, 784 So. 2d 148, 160 (Miss.

2001)). Further, “[w]here a trial court determines that potentially prejudicial evidence

possesses sufficient probative value, it is within that court’s sound discretion whether or not

to admit the same, since [Rule] 403 does not mandate exclusion but rather provides that the

evidence may be excluded.” Jones v. State, 904 So. 2d 149, 152 (citing Baldwin, 784 So.

2d at 156). And “[t]he task of an appellate court in reviewing such a determination is not to

conduct its own de novo Rule 403 balancing, but simply [to] determine whether the trial

court abused its discretion in weighing the factors and in admitting or excluding the

evidence.” Id. (citing Foster v. State, 508 So. 2d 1111, 1117-18 (Miss. 1987), overruled on

other grounds by Powell v. State, 806 So. 2d 1069, 1080 (Miss. 2001)).

¶76. We agree with the trial court’s analysis that, under Rule 403, evidence of Bethany

Clark’s subsequent drug conviction held little, if any, probative value. Further, even

assuming that the trial court did abuse its discretion by excluding evidence of Bethany

Clark’s felony drug conviction, we hold that any such error was harmless. “[F]or a case to

be reversed on the admission or exclusion of evidence, it must result in prejudice and harm

or adversely affect a substantial right of a party.” Hammons v. State, 918 So. 2d 62, 65

(alteration in original) (internal quotation mark omitted) (quoting Holladay v. Holladay, 776

So. 2d 662, 672 (Miss. 2000)). And “[e]rror is reversible only where it is of such magnitude

as to leave no doubt that the appellant was unduly prejudiced.” Id. (internal quotation mark

38 omitted) (quoting Holladay, 776 So. 2d at 672). Moreover, “[t]he Constitution does not

guarantee a perfect trial, but it does entitle a defendant in a criminal case to a fair trial.” Id.

(citing Clark v. State, 891 So. 2d 136, 141 (Miss. 2004)). When a trial court improperly

restricts a defendant’s ability to impeach a witness, certain factors may be examined to

determine whether the error was harmless, including “the extent of cross-examination

otherwise permitted . . . .” Id. (internal quotation mark omitted) (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)).

¶77. Here, testimony regarding Bethany Clark’s illegal drug use was presented to the jury.

Indeed, after excluding evidence of Bethany Clark’s conviction, the trial judge stated that “I

think it’s fair game for you to inquire about what happened at or about the time of this

incident.” During cross-examination of Bethany Clark by defense counsel, Bethany Clark

admitted to having “used street drugs” “[b]efore the pregnancy . . . .” It is apparent that the

extent of cross-examination permitted by the trial court renders any potential error in

excluding evidence of Bethany Clark’s conviction harmless.

¶78. Indeed, “[h]armless error will result if the same evidence improperly excluded comes

in by another means.” Holland v. State, 705 So. 2d 307, 344 (Miss. 1997) (citing Jackson

v. State, 594 So. 2d 20, 25 (Miss. 1992)). Since evidence of Bethany Clark’s drug use before

and after Kyllie Clark’s death “[came] in by another means, [any potential] exclusion error

is rendered harmless.” Wilson v. State, 156 So. 3d 808, 810 (Miss. 2013) (citing Holland,

705 So. 2d at 307). Therefore, notwithstanding our holding that the circuit court did not

abuse its discretion by excluding evidence following a Rule 403 test of Bethany Clark’s

felony drug conviction subsequent to Kyllie Clark’s death, we find that any potential error

39 was rendered harmless by both the extent of cross-examination by Clark and the presentation

of evidence of Bethany Clark’s drug use.

F. Whether the admission of the medical report of nurse practitioner Ashley Weiderhold violated Clark’s confrontation rights under the Sixth Amendment.

¶79. Finally, Clark argues that his rights under the Confrontation Clause of the Sixth

Amendment were violated when Ashley Weiderhold, a nurse practitioner who dictated Dr.

Lakin’s report upon which Dr. Lakin relied for her own testimony at trial, was not present

at trial for cross-examination by Clark. Clark asserts that Dr. Lakin simply reviewed,

opened, closed and signed the report. Clark submits that the inability to cross-examine

Weiderhold required reversal of his conviction. The State instead argues that Clark’s Sixth

Amendment Confrontation Clause rights were satisfied when Dr. Lakin reviewed the report

for accuracy and signed it as a technical reviewer.

¶80. “Defendants in criminal cases have a fundamental constitutional right to be confronted

with witnesses against them.” Armstead, 196 So. 3d at 917 (citing U.S. Const. amend. VI;

Miss. Const. art. 3, § 26). Per Melendez-Diaz v. Massachusetts, 577 U.S. 305, 310-11, 129

S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v. New Mexico, 564 U.S. 647, 664-

665, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), “forensic reports created specifically to serve

as evidence against an accused at trial are among the ‘core class of testimonial statements’

governed by the Confrontation Clause.” Armstead, 196 So. 3d at 918. We have approved

the admission of reports through the testimony of “technical reviewers, who had examined

reports generated by other analysts and verified that the data supported the conclusions of the

reports.” Id. at 920 (citing Jenkins v. State, 102 So. 3d 1063, 1064, 1069 (Miss. 2012);

40 Grim v. State, 102 So. 3d 1073, 1074, 1081 (Miss. 2012)).

¶81. The case against finding a constitutional violation is even stronger here than in

Armstead or Grim.10 Rather than a technical reviewer simply reviewing the work of an

analyst and signing off on a report, Dr. Lakin testified at trial—subject to Clark’s cross-

examination—regarding a report that Weiderhold dictated for Dr. Lakin and that Dr. Lakin

later reviewed and signed. Simply stated, Clark’s fundamental right to confront the witness

against him was not violated by an inability to confront a party that dictated a medical report.

Clark’s assertion, that Weiderhold rather than Dr. Lakin wrote the report, is without merit

and does not demonstrate a violation of Clark’s rights under the Confrontation Clause.

¶82. Since the circuit court did not err by admitting the medical report dictated by

Weiderhold that was reviewed and signed by Dr. Lakin and since Dr. Lakin was present at

trial for cross-examination, Clark has failed to show that a constitutional violation occurred

here. Accordingly, Clark’s sixth and final remaining assignment of error is without merit.

CONCLUSION

¶83. We reverse the decision of the Court of Appeals, and we reinstate and affirm the

decision of the Itawamba County Circuit Court.

10 See Armstead, 196 So. 3d at 920-21 (When an expert forensic science witness who served as a technical reviewer for tests performed on a substance suspected to be cocaine reviewed the data provided by the primary analyst and verified the primary analyst’s conclusions and testified about her involvement in the testing procedures, we held that the expert witness’s testimony “did not violate Armstead’s rights under the Confrontation Clause.”); see also Grim, 102 So. 3d at 1081 (When a testifying laboratory supervisor witness was not involved in the testing of a substance, but “reviewed the report for accuracy and signed the report as the ‘case technical reviewer[,]’” we held that Grim’s rights under the Sixth Amendment were satisfied because Grim was able to cross-examine the supervisor.).

41 ¶84. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE ITAWAMBA COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

MAXWELL, BEAM AND GRIFFIS, JJ., CONCUR. RANDOLPH, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, P.JJ., AND COLEMAN, J.

ISHEE, JUSTICE, DISSENTING:

¶85. “Battle of the experts” is a misnomer. The State failed to establish that its expert was

anything more than a qualified pediatrician. Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), requires the prosecution to show

reliable methodology: that Dr. Lakin could reliably establish that Kyllie was injured in

Clark’s custody and that her injuries were caused by abusive head trauma. The State failed

to do so, and, as such, I must respectfully dissent.

¶86. Justice Chamberlin emphasizes that this Court “must not allow ourselves to become

the gatekeeper.” Chamberlin Op. ¶ 13. I too am “confident that our learned trial judges can

and will properly assume the role as gatekeeper on questions of admissibility of expert

testimony.” Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 40 (Miss. 2003). Daubert

endorses “trial-court discretion in choosing the manner of testing reliability.” Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 158, 119 S. Ct. 1167, 1179, 143 L. Ed. 2d 238 (1999)

(Scalia, J., concurring). But this discretion “is not discretion to abandon the gatekeeping

function.” Id. at 158-59. “[I]t is not discretion to perform the function inadequately.

Rather, it is discretion to choose among reasonable means of excluding expertise that is

fausse and science that is junky.” Id. at 159. “This Court and the Mississippi Court of

42 Appeals have reversed and remanded cases in which the trial court erroneously included or

excluded expert testimony.” Inv’r Res. Servs. Inc. v. Cato, 15 So. 3d 412, 416 (Miss. 2009).

It is the duty of this Court to determine whether the trial court abused its discretion as the

gatekeeper. Id.

¶87. Here, the trial court held a Daubert hearing regarding the admissibility of Dr. Lakin’s

expert testimony. As an experienced pediatrician of almost twenty years and a board-

certified child-abuse specialist, Dr. Lakin was qualified to render an expert opinion within

the field of pediatrics. But an extensive voir dire of Dr. Lakin revealed that the methodology

behind her opinion failed to meet the reliability prong.

¶88. The defense asked Dr. Lakin whether there was disagreement in the scientific

community over SBS/AHT methodology. She conceded there was. When asked whether she

could cite any specific scientific source to substantiate the methodology, she referred

generally to the American Academy of Pediatrics. The defense asked Dr. Lakin if the field

of pediatrics was the sole discipline to study SBS/AHT; she replied that it was not.

¶89. According to Dr. Lakin, physiologists, pathologists, radiologists, neurosurgeons, and

engineers have also analyzed the theory. She acknowledged that many disciplines discount

SBS/AHT as a reliable diagnosis. When the State asked Dr. Lakin her conclusion as to

Kyllie’s cause of death, she replied that despite a lack of external trauma to Kyllie and a lack

of history of any type of trauma, Kyllie’s internal hemorrhages as well as her rib fractures led

Dr. Lakin to conclude SBS/AHT was the cause of death.

¶90. Dr. Lakin testified during the hearing that she could, to a degree of medical certainty,

render an opinion as to the timing of Kyllie’s injury. She opined that Kyllie’s injury could

43 not have occurred before 3 p.m., meaning that Kyllie’s injury must have occurred while she

was in the sole custody of Clark. Dr. Lakin was extensively questioned regarding her degree

of certainty as to the timing of the injury.

¶91. Dr. Lakin also opined that the more severe the neurological symptoms, the closer in

time the injury must have occurred. She reasoned that because Kyllie’s symptoms

manifested themselves quickly, her injury took place within the precise window of 3 p.m. to

5:30 p.m., when Kyllie was in the care of Clark. Dr. Lakin’s opinion was the only evidence

establishing what happened to Kyllie and when it must have occurred. In order for Dr.

Lakin’s testimony to pass muster under Daubert, the State was required to show that her

testimony reliably established when Kyllie was injured and connected that time with Clark’s

sole custody of Kyllie. See 509 U.S. at 589-90.

¶92. On cross-examination, the defense inquired as to the specific injuries that Dr. Lakin

diagnosed. By her own account, Dr. Lakin could not connect Kyllie’s rib fractures, which

were healing, to January 5 and could certainly not say they were inflicted during the two-hour

span that day in which Clark had sole custody of Kyllie. Clark further questioned Dr. Lakin

about whether the numerous resuscitation attempts made on Kyllie could have impacted

Kyllie’s diagnosis. The pathologist’s report listed “aggressive cardiopulmonary

resuscitation” (CPR) as one of the injuries observed at the autopsy. Dr. Lakin admitted that

several attempts were made to resuscitate Kyllie. When questioned about whether the CPR

could have caused Kyllie’s subdural hemorrhages, Dr. Lakin could not rule the possibility

out.

¶93. The Daubert Court held that whether the underlying theory can be tested is the key

44 question in whether the methodology is reliable. Daubert, 509 U.S. at 593. The defense

asked if Dr. Lakin could state how much force was required to cause SBS/AHT:

Q. All right. So what studies do you have to talk about how the velocity with which a human being can shake a baby? What studies do you have about that?

A. Well, that’s the problem. You can’t do a study on what forces are generated when a baby is shaken because we can’t shake a human baby and measure the force.

Q. So you can’t say how much force it takes, then, to cause shaken baby syndrome?

A. That’s correct.

¶94. Dr. Lakin admitted that she could not state the amount of force required to cause

Kyllie’s injuries. At the Daubert hearing, when asked to produce any literature affirming

the validity of SBS/AHT within the medical community, Dr. Lakin replied that she did not

have any articles with her. Instead, she pointed generally to the position paper of American

Academy of Pediatrics. Dr. Lakin admitted that she did not know of any studies regarding

the error rate of SBS/AHT diagnosis. In fact, the State never offered any scientific literature

to support Dr. Lakin’s position. Clark, on the other hand, provided multiple articles, studies,

and other sources criticizing the validity of SBS/AHT.

¶95. Dr. Lakin admitted that a SBS/AHT diagnosis creates an assumption about the

caregiver due to the lack of explanation for the infant’s injuries. She also acknowledged that

because she was not a pathologist, she did not have the training nor expertise to determine

cause of death. Dr. Lakin testified that there is literature stating that the more severe the

injury, the more likely it is for symptoms to immediately appear, but she could not name any

45 specific source.

¶96. Instead of determining whether Dr. Lakin’s testimony was reliable, the circuit court

erroneously found only that Dr. Lakin was in fact an expert. The record undeniably reflects

Dr. Lakin’s competence and expertise as a pediatrician and child-abuse treatment provider.

But this is inadequate to support a conclusion that her methodology was reliable. It is the

task of the trial court, not the jury, to determine whether proffered expert testimony is

reliable.

¶97. Justice Chamberlin opines that “the real problem in this case” is “not so much the

testimony of Dr. Lakin as it is the fact that the SBS/AHT diagnosis has been increasingly

challenged and questioned in recent years.” Chamberlin Op. ¶ 24. Certainly I am concerned

about the validity of the science behind SBS/AHT, but the validity of SBS/AHT is not before

the Court per se. The real problem is that Dr. Lakin did not establish the required reliability

of her methodology as required by Daubert.

¶98. The trial court made only cursory findings as to the admissibility of Dr. Lakin’s

opinion testimony. In fact, the trial court’s only finding regarding Dr. Lakin’s testimony was

that “she is qualified to testify.” The trial court did not address the reliability or the relevance

of Dr. Lakin’s testimony. Justice Chamberlin hand waves that the trial court lumped the

Daubert findings of relevance and reliability under the trial court’s term “qualified.”

Chamberlin Op. ¶ 20. Justice Chamberlin is correct that there are no “magic words” required

under Daubert, but there are still demands that must be met—namely, reliability.

Chamberlin Op. ¶ 20 (citing Jones v. State, 920 So. 2d 465, 476 (Miss. 2006)). I would

emphasize that the qualifications of the witness are not what establishes reliability under

46 Daubert. The trial judge as gatekeeper must determine if the witness’s proffered

methodology is reliable, not whether the expert herself is reliable. See 509 U.S. at 589-90.

¶99. Dr. Lakin was given extensive opportunity to defend her proposed methodology, but

she could not. She could not cite or name any specific article supporting her methodology.

Simply stating that peer-reviewed articles exist is not providing evidence of acceptance in

the scientific community. The defense expert on the other hand thoroughly discredited

SBS/AHT by providing ample documentation criticizing the validity of the diagnosis. If Dr.

Lakin’s position in support of SBS/AHT really is recognized by the scientific community as

a viable alternative, Dr. Lakin failed to prove it. The trial judge abused his discretion in

admitting her testimony.

¶100. Finally, I would echo the Court of Appeals in stating that

Our reversal is not meant to serve as a determination that all scientific testimony regarding SBS is insufficiently reliable to serve as a basis for civil or criminal liability. Our reversal is instead intended to encourage the proponents of SBS testimony to solidly provide courts with true “expert” testimony grounded on sound methodology, principles, or techniques.

Clark v. State, No. 2017-KA-00411-COA, 2019 WL 5566234, at *1 n.1 (Miss. Ct. App. Oct.

29, 2020). If the State had another bite at the apple, Dr. Lakin could very well establish that

her opinion regarding SBS/AHT is reliable enough under Daubert to aid a jury.

¶101. I would find that the Court of Appeals correctly held that the circuit court abused its

discretion by admitting Dr. Lakin’s testimony. I respectfully dissent.

KITCHENS AND KING, P.JJ., AND COLEMAN, J., JOIN THIS OPINION.