                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2012-CA-00725-SCT

STATE OF MISSISSIPPI

v.

NINA BUCKHALTER a/k/a NINA R.
BUCKHALTER a/k/a NINA ROZANNE
BUCKHALTER

DATE OF JUDGMENT:                         04/18/2012
TRIAL JUDGE:                              HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                LAMAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF THE DISTRICT ATTORNEY,
                                          FIFTEENTH DISTRICT
                                          BY: LAUREN B. HARLESS
                                              DOUGLAS E. MILLER
                                              HALDON J. KITTRELL
ATTORNEYS FOR APPELLEE:                   ROBERT B. MCDUFF
                                          JACOB WAYNE HOWARD
                                          KARL C. HIGHTOWER
                                          FARAH DIAZ-TELLO
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              AFFIRMED - 08/08/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The Lamar County grand jury indicted Nina Buckhalter for culpable-negligence

manslaughter after she gave birth to a stillborn baby girl. The circuit court dismissed the

indictment, finding certain language in the manslaughter statute to be “vague and

ambiguous,” when applied to “a woman who has caused the miscarriage or stillbirth of her
unborn child.” The State 1 appealed. Because we find the indictment was fatally flawed, we

affirm its dismissal without reaching the issue addressed by the circuit court.

                          FACTS AND PROCEDURAL HISTORY

¶2.    In her thirty-first week of pregnancy, Nina gave birth to a stillborn child, Hayley Jade

Buckhalter. A Lamar County grand jury indicted Nina for culpable-negligence manslaughter

under Section 97-3-47,2 which defines manslaughter as the “killing of a human being, by the

act, procurement, or culpable negligence of another.” 3 The indictment alleged that Nina

       did willfully, unlawfully, feloniously, [k]ill Hayley Jade Buckhalter, a human
       being, by culpable negligence, contrary to and in violation of Section 97-3-47,
       of the Mississippi Code of 1972, as amended; against the peace and dignity of
       the State of Mississippi.4

¶3.    The indictment failed to disclose how Nina allegedly caused Hayley Jade’s death, but

from statements in other pleadings, we assume the State planned to prove at trial that she

ingested illegal drugs during the course of her pregnancy.5 And neither the indictment nor

anything else in the record identifies the type of illegal drugs allegedly involved.

¶4.    Nina filed a motion to dismiss the indictment, arguing the word “other” in the

manslaughter statute did not apply to a pregnant woman for the death of her unborn child;


       1
        The Attorney General’s Office has not filed a brief in this matter. The State’s brief is
authored by the District Attorney’s Office of the Fifteenth District.
       2
           Miss. Code Ann. § 97-3-47 (Rev. 2006).
       3
           (Emphasis added.)
       4
           (Emphasis added.)
       5
           The record does not identify the type of drugs Nina is accused of ingesting.

                                                2
and that, at best, the word was ambiguous. The State opposed the motion, but the Lamar

County Circuit Court granted it, stating that Section 97-3-47 was “vague as to whether the

legislature intended the term ‘other’ to be specifically inclusive of the pregnant woman

herself as against her own unborn child.” The State appealed, raising two issues:

       I.        Whether the circuit court erred by dismissing the indictment upon
                 finding that the manslaughter statute was vague.

       II.       Whether the circuit court erred by considering the legislature’s failed
                 attempts to pass laws that specifically would criminalize a mother’s
                 conduct which harms her unborn child.

¶5.    Because the indictment against Nina was fatally flawed, our analysis of the case must

end there. We affirm dismissal of the indictment, but for reasons other than those stated by

the circuit judge, and we decline to address the merits of either of the issues presented.

                                         DISCUSSION

¶6.    Mississippi’s manslaughter is included in Title 97 of the Mississippi Code. Within

Title 97 – prior to the manslaughter statute – are two statutes (discussed later) that

criminalize the intentional killing of a fetus. Comes then the manslaughter statute which

states in its entirety:

       Every other killing of a human being, by the act, procurement, or culpable
       negligence of another, and without authority of law, not provided for in this
       title, shall be manslaughter.6

¶7.    So the manslaughter statute applies only where there is no other applicable criminal

statute under Title 97. Stated another way, the manslaughter statute does not apply to


       6
           Miss. Code Ann. § 97-3-47 (Rev. 2006) (emphasis added).

                                                3
conduct that may be prosecuted under any other Title 97 statute. And here – assuming Nina

did what the indictment charged she did – there are two statutes under which her conduct

may have been prosecuted.

¶8.    If, as the indictment alleges, Nina indeed did “willfully . . . kill” her unborn child –

and assuming the term “any person” applies to Nina, an issue we do not reach today – she

could have been prosecuted under Section 97-3-3 (1), which states:

       Any person wilfully and knowingly causing, by means of any instrument,
       medicine, drug or other means whatsoever, any woman pregnant with child to
       abort or miscarry . . . shall be guilty of a felony unless the same were done by
       a duly licensed, practicing physician . . .7

¶9.    Also, she could have been prosecuted under Section 97-3-19 (1), which provides:

       The killing of a human being without the authority of law by any means or in
       any manner shall be murder . . . (d) when done with deliberate design to effect
       the death of an unborn child.8

¶10.   So, because Nina’s conduct – as alleged in the indictment – is addressed in other Title

97 statutes, it may not be prosecuted under Section 97-3-47.

¶11.   We must address two prior cases that might seem to – but do not – conflict with our

holding today.       In Williams v. State,9 the defendant was indicted for “willfully and

feloniously kill[ing] and slay[ing] one John Turner, a human being, by culpable negligence.”

The 1931 culpable-negligence manslaughter statute was similar to ours today, and provided:


       7
           Miss. Code Ann. § 97-3-3 (1) (Rev. 2006).
       8
          Miss. Code Ann. § 97-3-19(1)(d) (Rev. 2006). A “human being,” for purposes of this
statute, includes an unborn child. See § 97-3-37(1)(d)(Rev. 2006).
       9
           Williams v. State, 161 Miss. 406, 137 So. 106, 107 (1931).

                                                 4
“every other killing of a human being, by the act, procurement, or culpable negligence of

another, and without authority of law, not provided for in this chapter, shall be

manslaughter.” 10

¶12.   On appeal from the trial court’s denial of Williams’s demurrer, he did not argue that,

because he could have been prosecuted under other statutes, he could not be prosecuted for

manslaughter. This Court did not address the issue.

¶13.   Similarly, the defendant in Yazzie v. State11 was indicted for “unlawfully, wilfully, and

feloniously . . . kill[ing] and slay[ing] one Phyllis Waits, a human being . . .” under Section

97-3-47. Yazzie’s conviction was affirmed on appeal, but he neither raised nor argued the

issue before us today. But to be clear, to the extent they conflict with today’s opinion, we

overrule Williams and Yazzie.

¶14.   We also note that Nina’s counsel did not employ this argument in challenging the

indictment in the trial court, nor was it briefed to this Court on appeal. It was raised at oral

argument, however, and the State conceded that the indictment was flawed because the

“willful” language should not have been included as there was no evidence of a willful




       10
            Id. (quoting Section 1002, Code 1930) (emphasis added).
       11
            Yazzie v. State, 366 So. 2d 240, 242 (Miss. 1979).

                                                  5
killing. Because the flaw in Nina’s indictment is clear and obvious, and because it affects

a fundamental right,12 we have elected to address the issue as plain error.13

¶15.   We also express concern over the indictment’s failure to provide any notice or

information whatsoever as to how the State alleges Nina “did willfully, unlawfully,

feloniously, [k]ill Hayley Jade Buckhalter, a human being, by culpable negligence.” We

need not elaborate further on this curious omission.

                                        CONCLUSION

¶16.   This Court will affirm a trial court that has reached the right result, even if we disagree

with – or, as here, decline to address – the trial court’s reasoning.14 Nina’s indictment for

manslaughter, which alleges she “willfully” caused the death of her child, is fatally flawed,

so we affirm the trial court’s dismissal of the indictment.

¶17.   AFFIRMED.

     WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ.,
CONCUR. KING, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

       KING, JUSTICE, CONCURRING IN RESULT:



       12
         “Under the plain-error doctrine, we can recognize obvious error which was not properly
raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive
right.’”Smith v. State, 986 So. 2d 290, 294 (Miss. 2008) (citations omitted).
       13
         “Plain-error review is properly utilized for ‘correcting obvious instances of injustice or
misapplied law.’” Id. (quoting Newport v. Fact Concerts, 453 U.S. 247, 256, 101 S. Ct. 2748, 69
L. Ed. 616 (1981)).
       14
         See Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So. 2d 711, 725
(Miss. 2002) (citing Jackson v. Fly, 215 Miss. 303, 311, 60 So. 2d 782, 786 (1952)).

                                                6
¶18.   Finding the manslaughter statute to be vague and ambiguous regarding whether

Buckhalter may be prosecuted for the death of her unborn child, the trial court dismissed

Buckhalter’s indictment. The majority opinion finds the indictment to be flawed and

dismisses the indictment, but leaves room for the State simply to reindict Buckhalter. See

Miss. Code Ann. § 99-1-9 (Rev. 2007). If the majority were able to dismiss the case with

prejudice, I would concur. However, it cannot. For this reason, I join solely in the result.

¶19.   Buckhalter did not raise the indictment issue below or on appeal. As noted by the

majority, the issue was raised by the Court in oral argument. When asked about the

indictment during oral argument, Buckhalter’s appellate counsel requested that the Court

address the merits of the case rather than having the case returned to circuit court for a new

indictment and then returned here. I agree with Buckhalter’s counsel that this Court, in the

interest of judicial economy, should address the merits of this matter. The merits of the case

are subject to repetition and should be addressed by the Court. See Miss. Ethics Comm’n

v. Comm. on Prof’l Responsibility of the Miss. Bar, 672 So. 2d 1222, 1224 (Miss. 1996).

¶20.   Since I have been a member of this Court, this issue has arisen twice. First, in Gibbs

v. State, the Court initially granted Gibbs’s request for interlocutory appeal to determine

whether the depraved-heart-murder statute applied to women who gave birth to stillborn

babies. Gibbs v. State, 2010-IA-00819-SCT, Order No. 172566 (Miss. October 27, 2011).

The Court even heard oral arguments in the case. Id. (King, J., objecting). Then, 498 days

after having granted the interlocutory appeal, the Court decided it had granted improvidently

Gibbs’s request for an interlocutory appeal and remanded the case to trial. Id.

                                              7
¶21.   Now, Buckhalter is before the Court with a very similar issue. Today’s decision

places Buckhalter at risk of substantial injury – reindictment and a possible trial and

conviction. Also with reindictment, Buckhalter will have the same issue to present to the

circuit court for resolution – whether she can be charged for murder of any kind under

Mississippi statutes. Buckhalter’s case, like Gibbs, will be back to square one. If the

majority feels compelled to address the merits of an issue never raised by the defense, it

certainly should feel compelled to address Buckhalter’s concerns, which are properly before

this Court and possibly could end the case.

¶22.   Thus, in the interest of judicial economy, I would address the case on the merits.

       KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.




                                              8
