                                IN THE COURT OF APPEALS
                                         OF THE
                                  STATE OF MISSISSIPPI
                                        NO. 96-KA-01085 COA
ANTHONY WILLIAM MILLER                                                                      APPELLANT
v.
STATE OF MISSISSIPPI                                                                          APPELLEE

DATE OF JUDGMENT:           09/04/96
TRIAL JUDGE:                HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: GREENE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    GEORGE S. SHADDOCK
                            CALVIN D. TAYLOR
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:          DALE HARKEY
NATURE OF THE CASE:         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:    CAPITAL MURDER: SENTENCED TO SERVE A TERM
                            OF LIFE IMPRISONMENT IN THE CUSTODY OF THE
                            MDOC, SAID SENTENCE TO BE SERVED WITHOUT
                            BENEFIT OF PAROLE GOOD-TIME, EARNED-TIME OR
                            OTHER ADMINISTRATIVE REDUCTION OF
                            SENTENCE, AND PAY ALL COSTS;
DISPOSITION:                AFFIRMED-12/30/98
MOTION FOR REHEARING FILED: 1/13/99
CERTIORARI FILED:           4/7/99
MANDATE ISSUED:




BEFORE BRIDGES, C.J., HINKEBEIN, KING, AND PAYNE, JJ.

KING, J, FOR THE COURT:




¶1. Anthony William Miller was convicted of capital murder in the Greene County Circuit Court and
sentenced to serve a term of life imprisonment, without the benefit of parole, good-time, earned-time or
other administrative reduction of sentence, in the custody of the Mississippi Department of Corrections.
Aggrieved by his conviction and sentence, Miller has appealed and assigned seven points of error. This
Court quotes these alleged errors verbatim:

      (1) In failing to sustain the Appellant's Motion for a Mistrial during the testimony of Belinda
      Graham, as an unqualified expert, and after a sustained objection to said testimony, the trial
      court committed reversible error.

      (2) The trial court erred in failing to quash the indictment on the unconstitutional issue of no
      specific intent in the statute charging the appellant.

      (3) Section 97-5-39, Miss. Code of 1972 (amended) is unconstitutional, and violative of the
      Appellant's Fifth, Eighth and Fourteenth Amendment rights for vagueness, and as it contains
      no provision for a lesser included offense.

      (4) The trial court erred in granting, over objection, State Jury Instructions S-1 and S-9, said
      instructions being incorrect statements of the law.

      (5) The trial court erred in refusing the Appellant's proffered Jury Instructions D-1 and D-6,
      effectively denying the Appellant two critical theories to his defense.

      (6) The verdict of the jury is against the overwhelming weight of the credible evidence in this
      case and is contrary to law.

      (7) The culmination of error in this trial requires reversal.

Finding only harmless error, we affirm the circuit court judgment.

                                                     FACTS

¶2. On August 4, 1995, Gwendolyn Bradley left her fourteen month old son, Chase, with Miller at his trailer
home in Neely, Mississippi. Miller, who was Ms. Bradley's boyfriend, had agreed to care for Chase while
she ran errands in town.

¶3. According to Miller, as Ms. Bradley departed the trailer, he walked into the living room to give Chase
some liquid Tylenol. He heard Ms. Bradley yell to him as she walked out the side door, but did not
understand her. Miller testified that he left Chase in the living room and walked to the side door to find out
what Ms. Bradley said, but she had already departed in the car.

¶4. Miller said that he walked back into the living room, but did not see Chase. He checked throughout the
trailer, but Chase was not present. Miller stated that he finally found Chase sitting in front of the trailer steps
crying.

¶5. After picking Chase up and walking into the trailer, Miller noticed that a small amount of blood had
drooled from the corner of Chase's mouth. According to Miller, as he wiped the blood away with a
washcloth, Chase began to have a seizure. Miller quickly picked him up and took him to his mother's trailer
next door. Miller and his mother decided to drive Chase to the Greene County Ambulance Service in
Leakesville, Mississippi. While riding there, Miller explained that he thought Ms. Bradley may have hit
Chase accidentally with her car.
¶6. Upon Chase's arrival in Leakesville, medical personnel determined that he was in need of greater
medical attention. Because the ambulance unit in Greene County was not fully equipped with advanced
cardiac life support equipment, Charlotte Parnell, the supervising nurse at the George County Hospital
emergency room, traveled in its appropriately equipped ambulance to meet the Greene County ambulance.
Both ambulances met just across the county line.

¶7. Ms. Parnell examined Chase in the George County ambulance. She found his eyes fixed and dilated. He
had ceased breathing and was very cold and dry. Ms. Parnell observed that Chase had no abrasions or
cuts, and his body and hair were clean. After arriving at the George County Hospital, Ms. Parnell noticed
swelling above Chase's left ear.

¶8. Dr. John Vanderwood, an emergency room physician at the George County Hospital, examined Chase.
He took x-rays of Chase's head and chest. The x-rays of the head revealed a large break in the skull. He
found swelling on the left side, toward the back of Chase's head, but no other injuries. The chest x-ray did
not reveal any abnormalities.

¶9. Dr. Vanderwood transferred Chase to a better equipped hospital in Mobile, Alabama. Chase died en
route to this hospital. Dr. Vanderwood subsequently called the Department of Human Services in George
County and the Greene County Sheriff's Department to report what he considered to be potential child
abuse.

¶10. On August 5, 1995, Dr. Gregory Wanger, a forensic pathologist, performed an autopsy on Chase. He
found the following injuries:

(a) a contusion at the base of the upper part of the left ear,

(b) a contusion behind the left ear,

(c) a contusion on the right cheek,

(d) a torn and bruised frenulum, the web of tissue between the gum and the lip,

(e) a bruised area high up on the back of the head to the right,

(f) a bruised area near the center portion of the head,

(g) contusions underneath the chin.

¶11. It was Dr. Wanger's opinion that Chase died from blunt force injuries to the head, inflicted while
Chase was stationary. Because Chase's fractures lacerated the brain, Dr. Wanger thought that Chase would
not have had the capability to sit and cry, as alleged by Miller, after sustaining such injuries.

¶12. Dr. Wanger measured the distance from Chase's heel to the injuries on his head. From the heel to the
large bruise to the back of the head, 25 1/2 inches were measured. From the heel to the bruise at the top of
the head, 28 1/4 inches were measured. These measurements, when compared to the height of the front and
back car bumpers of Ms. Bradley's car, indicated that the injuries were inconsistent with an automobile
injury.(1)

¶13. Dr. Stephen Haynes, a pathologist at the Rankin Medical Center and the Mississippi Department of
Public Safety, reviewed Dr. Wanger's autopsy report, the post-mortem examination report, photographs
taken of Chase and the trailer home, medical reports prepared by the emergency medical technicians, a
statement by Kevin Fortenberry, an investigator for the Mississippi Highway Patrol Criminal Investigation
Division, and a statement from Miller taken at the police station. After analyzing this evidence, it was Dr.
Haynes's opinion that Chase's cause of death was blunt force trauma and his injuries were inconsistent with
having been hit by an automobile.

¶14. Miller was arrested and indicted for capital murder. On August 24, 1996, a jury convicted Miller of
this charge. His motion for new trial having been denied, Miller now appeals his conviction and sentence.

                                                  ISSUES

I. IN FAILING TO SUSTAIN THE APPELLANT'S MOTION FOR A MISTRIAL DURING
THE TESTIMONY OF BELINDA GRAHAM, AS AN UNQUALIFIED EXPERT, AND AFTER
A SUSTAINED OBJECTION TO SAID TESTIMONY, THE TRIAL COURT COMMITTED
REVERSIBLE ERROR.




¶15. In his first assignment of error, Miller contends that Belinda Graham, an emergency medical technician
employed by the Greene County Ambulance Service, improperly testified as an expert witness. He argues
that Ms. Graham was not properly qualified and tendered as an expert, and therefore her testimony
regarding the cause of injury to Chase should have been excluded or a mistrial should have been granted.

¶16. The following testimony was elicited from Ms. Graham on direct examination:

     Q: All right. And had you actually been employed as an EMT from 1990 to 1995?

     A: Yes, sir.

     Q: As an EMT, had you had an opportunity, or had you had an opportunity over that four or five year
     period of time, to become involved with patients that have been struck by vehicles?

     A: Yes, sir.

     Q: All right. Now, you had an opportunity to observe this child, did you not?

     A: Yes, sir.

     Q: Can you tell these ladies and gentlemen about how long of an opportunity, in terms of time, that
     you had to look at this child?

     A: From the time that he exited the car, up the steps to me, from the time I had the child until I placed
     him on the floor, and also as we were securing him to the short back board, I had an adequate
     amount of time to make a visual observation.

     Q: All right. And did you in fact look at the child complete, head to toe?

     A: Yes, sir.
      Q: And what was the purpose of that?

      A: Just to make an assessment of possible injuries that needed to be treated.

      Q: Can you tell these ladies and gentlemen what the child was wearing when he was brought in to
      you?

      A: To the best of my knowledge, he was wearing maybe a white diaper, a pamper or something.

      Q: All right. Did you have an opportunity, ma'am, to notice whether or not he had any injuries on his
      body?

      A: I noted no external damage, no sir.

      Q: Can you tell us whether or not that would be consistent or inconsistent with the history(2) given you
      by the defendant Tony Miller?

¶17. At this point in the direct examination, Miller objected. He argued that Ms. Graham was not qualified
to give an expert opinion regarding the cause of trauma to Chase. The State responded that Ms. Graham
was merely giving her observations as to whether Chase had been hit by an automobile. To support the
admission of Ms. Graham's testimony, the State made the following proffer of evidence outside the
presence of the jury:

      Q: Mrs. Graham, did you have an opportunity to observe this child?

      A: Yes, sir.

      Q: Did you notice any bruises or scratches on his body?

      A: No, sir.

      Q: Did you notice any grass stains?

      A: No, sir.

      Q: Did you notice any dirt?

      A: No, sir.

      Q: Did you notice any abrasions?

      A: No, sir.

      Q: Did you notice anything on this child's body which would indicate to you he had been struck by an
      automobile?

      A: No, sir.

¶18. At the conclusion of the proffer, the defense again objected. Miller argued that the last question still
required an expert opinion. The trial judge sustained this objection, but allowed the State, during direct-
examination, to ask the other questions presented in the proffer.

¶19. Before the State concluded its direct examination, the prosecutor asked the following questions which
again centered on the cause of trauma to Chase:

      Q: Now based on those observations, did that give you an indication as to whether or not this child
      had been struck by a car? . . .

      Q: What injuries, if any, did you observe on this child's body which would indicate he had been struck
      by a car?

¶20. The defense objected to the first question, and moved for a mistrial after the second question. The trial
judge sustained the objection to the first question, but denied Miller's request to have the question stricken
and the jury advised to disregard the statement. Miller's motion for mistrial was also denied.

                                                     Law

¶21. Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside
or outside the courtroom, misconduct by the party, the party's attorneys, or someone acting at the behest of
the party or the party's attorney, resulting in substantial and irreparable prejudice to the movant's case.

¶22. Upon motion of a party or its own motion, the court may declare a mistrial if:

      1. The trial cannot proceed in conformity with law; or

      2. It appears there is no reasonable probability of the jury's agreement upon a verdict.

URCCC 3.12

                                                   Analysis

¶23. A review of the record reveals that Ms. Graham was not tendered as an expert witness and never
gave her opinion, in the presence of the jury, regarding the cause of trauma to Chase. However, this Court
notes that on four occasions the prosecutor improperly sought testimony from Ms. Graham which
concerned the cause of trauma to Chase. Ms. Graham's opinion, in this regard, would have been an expert
opinion requiring skill, experience, training and education. M.R.E. 702. Having failed to tender and qualify
Ms. Graham as an expert witness, it was error for the State to seek Ms. Graham's opinion about the cause
of trauma to Chase.

¶24. Notwithstanding the prosecutor's efforts to ask an improper question on four occasions, we do not
find that substantial and irreparable prejudice resulted to Miller's case. Considering that three physicians and
an emergency room nurse testified regarding the cause of trauma to Chase and Ms. Graham never gave a
response to the prosecutor's questions in the presence of the jury, the State's error was harmless.




II. THE TRIAL COURT ERRED IN FAILING TO QUASH THE INDICTMENT, ON THE
UNCONSTITUTIONAL ISSUE OF NO SPECIFIC INTENT IN THE STATUTE CHARGING
THE APPELLANT.




¶25. In his second assignment of error, Miller contends that the indictment should have been quashed
because the statute upon which the indictment was based failed to include deliberate design.

      Law

      The killing of a human being without the authority of law shall be capital murder 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 § 97-5-39 of Miss. Code Ann.

Miss. Code Ann. § 97-3-19(2)(f).




¶26. Miss. Code Ann. § 97-5-39 (2) states that felonious abuse and/or battery of a child occurs when any
person shall intentionally burn, torture, whip, strike or otherwise abuse or mutilate any child in such a
manner as to cause serious bodily harm.

                                                    Analysis

¶27. Miller argues that the indictment failed to include deliberate design, a specific intent provision.

¶28. The indictment read, in pertinent part:

      Anthony William Miller in Greene County, Mississippi, on or about August 4, 1995, did then and
      there willfully, unlawfully and feloniously, and without any design to effect death, kill and murder
      Chase Bradley, a human being under the age of eighteen years, while in the commission of the crime
      and felony of abuse and/or battery of a child, as defined by Miss. Code Ann. § 97-5-39 (as
      amended), contrary to and in violation of Miss. Code Ann. § 97-3- 19(2)(f) (as amended) and
      against the peace and dignity of the State of Mississippi.

¶29. According to Miss. Code Ann. §97-3-19(2)(f)(as amended), capital murder may be committed with
or without deliberate design. Though the commission of murder generally requires deliberate design, "[t]he
intent of the [Mississippi] Legislature was that serious child abusers would be guilty of capital murder [when
committing the underlying felony with or without deliberate design] if the child died." Faraga v. State, 514
So.2d 295, 302 (Miss.1987). "[T]he Legislature's prerogative is to define crimes and set the punishment for
offenders, and this prerogative is given great latitude." Id. Accordingly, this Court defers to the wisdom of
the Legislature.

III. SECTION 97-5-39, MISSISSIPPI CODE ANNOTATED OF 1972 (AS AMENDED) IS
UNCONSTITUTIONAL AND VIOLATIVE OF THE APPELLANT'S FIFTH, EIGHTH AND
FOURTEENTH AMENDMENT RIGHTS FOR VAGUENESS, AND AS IT CONTAINS NO
PROVISION FOR A LESSER INCLUDED OFFENSE.
¶30. Miller contends that Miss. Code Ann. § 97-5-39 is unconstitutionally vague because it allows the
merger of the crime of felony child abuse with capital murder. Under this "merger," Miller argues that a
specific set of facts supporting the crime of capital murder has not been alleged against him. Miller's
argument is without merit.

¶31. To determine whether a statute is unconstitutionally vague, the Court must ascertain whether it does
not inform those subject to it what acts it is their duty to avoid, or what conduct on their part will render
them liable to its penalties. State v. Roderick, 704 So.2d 49, 53 (Miss.1997). "The test is whether the
language conveys sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices." Id. (quoting Jordan v. DeGeorge, 341 U.S. 223, 231-32 (1951)).

¶32. In light of this standard, we find that Miss. Code Ann. § 97-5-39 clearly states the elements of
felonious child abuse and/or battery and provides a sufficiently definite warning of what is unlawful conduct.
This statute requires that any person who shall intentionally burn, torture, whip, strike, or otherwise abuse or
mutilate a child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or
battery of a child. Considering the precise language of the statute and its legislative intent, this Court does
not find this statute vague.

¶33. Miller also contends that Miss. Code Ann. § 97-5-39 fails to allow a lesser-included offense i.e.,
simple murder. This argument is too without merit.

¶34. As previously mentioned, the legislature defines crime and sets the punishment for crimes. As a matter
of policy, it was determined that felony child abuse/battery would be elevated to capital murder, without the
opportunity for a lesser-included offense. In light of policy considerations, this Court again defers to the
judgment of the legislature.

IV. THE TRIAL COURT ERRED IN GRANTING, OVER OBJECTION, STATE'S JURY
INSTRUCTIONS S-1 AND S-9, SAID INSTRUCTIONS BEING AN INCORRECT
STATEMENT OF THE LAW.

                                               Instruction S-1

¶35. While the attorneys were engaged in discussion of the jury instructions, the State requested that its
Instruction S-1 be amended. Over Miller's objection, the trial court granted the amended instruction. Miller
now argues that the amendment (1) was untimely and (2) should have been amended to reflect with
deliberate design. Because Miller failed to argue the timeliness issue at the trial court, this issue is
procedurally barred on appeal. Chase v. State, 645 So.2d 829, 859 (Miss.1994). This Court addresses
only the deliberate design issue.

                                                   Analysis

¶36. Before its amendment, Instruction S-1 read as follows:

      If you believe from all the evidence in this case, beyond a reasonable doubt and to the exclusion of
      every reasonable hypothesis consistent with innocence, that the defendant Anthony William Miller, on
      or about August 4, 1995, in Greene County, Mississippi, did wilfully, unlawfully, feloniously, with or
      without deliberate design, then and there kill Chase Bradley, a human being, without authority of law,
      when engaged in the commission of the crime of felonious abuse and/or battery, then, if you so believe
      from all the evidence in this case beyond a reasonable doubt, the defendant is guilty of capital murder,
      and it is your sworn duty to say so by your verdict.

¶37. The State requested that it be amended to read "without deliberate design". The defense objected,
claiming that the term "willful" denoted deliberate action, and therefore the instruction should have read
"with deliberate design".

¶38. Miller is correct. Wilful means deliberate. BLACK'S LAW DICTIONARY 1599 (6th ed.1990).
However, in the instant instruction, the act of deliberateness was required when committing felonious child
abuse and/or battery, the underlying felony. Lester v. State, 692 So.2d 755, 789 (Miss.1997). Because
capital murder may be committed without deliberate design, the trial court did not err in allowing the State's
amendment.

                                               Instruction S-9

¶39. Miller argues that there was no evidentiary basis for Instruction S-9.

¶40. Instruction S-9 read as follows:

      The Court instructs the jury that if you believe from all the evidence in this case beyond a reasonable
      doubt, and to the exclusion of every reasonable hypothesis consistent with innocence, that the
      defendant, Anthony William Miller, in Greene County, Mississippi, on or about August 4, 1995, did
      wilfully, unlawfully, feloniously, and intentionally whip, strike, or otherwise abuse or mutilate Chase
      Bradley, a child under the age of eighteen (18) years, in such a manner as to cause serious bodily
      harm, not in self-defense, or in defense of others, then the same would constitute felonious child abuse
      or battery.

      The Court further instructs you that a pattern of abuse dispenses over a period of time, need not be
      shown in order for the acts, if any, of the defendant to constitute the crime of felonious child abuse
      and/or battery.

                                                  Analysis

¶41. "[T]he general rule is that jury instructions must be supported by evidence . . ." Wilson v. State, 592
So.2d 993, 997 (Miss.1991). Notwithstanding the testimony of Miller, his mother, and his brother that he
would not have abused Chase, this Court finds that ample evidence was presented which supported the
granting of Instruction S-9.

V. THE TRIAL COURT ERRED IN REFUSING THE APPELLANT'S PROFFERED JURY
INSTRUCTIONS D-1 AND D-6, EFFECTIVELY DENYING THE APPELLANT TWO
CRITICAL THEORIES TO HIS DEFENSE.

¶42. Miller argues that the trial court erred in denying defense Instructions D-1 and D-6.

¶43. These instructions read as follows:

      Instruction D-1

      The Court instructs the jury that there are two possible verdicts for you to consider in this case. Based
     upon the evidence presented in trial, you must decide whether Anthony Miller is guilty of capital
     murder or that he is not guilty.

     1) For you to find Anthony Miller not guilty of capital murder, you must be convinced beyond a
     reasonable doubt and to the exclusion of every reasonable hypothesis consistent with that of
     innocence of all the following elements:

     a) That Anthony Miller did kill and murder Chase Bradley, a human being,

     b) while engaged in the crime of child abuse as defined in these instructions of law.

     2) If you are not convinced beyond a reasonable doubt and to the exclusion of every reasonable
     hypothesis consistent with that of innocence that Anthony Miller is guilty of capital murder as defined
     herein; your verdict must be that of not guilty.

     Instruction D-6

     The Court instructs the jury that the term or phrase "to the exclusion of every reasonable hypothesis
     consistent with that of innocence" means that in a circumstantial evidence case such as this case, that
     the burden of proof is upon the State of Mississippi to prove each and every essential element of the
     crime charged beyond a reasonable doubt and to the exclusion of every reasonable theory of the case
     that is compatible with that of a finding of not guilty.


                                                 Analysis

¶44. The trial judge denied Instruction D-1. She determined that the language included in this instruction,
though in accordance with the law, was adequately presented in other instructions. This Court agrees. State
Instructions S-1, S-9, and Defense Instructions D-4A, D-5, and D-8A properly defined the elements of
capital murder and felonious abuse, and stated the State's burden of producing evidence to prove Miller's
guilt to the exclusion of every other reasonable hypothesis. This Court will not reverse for denial of an
individual instruction when the jury has been instructed properly and fully by the granting of all the
instructions. Catchings v. State, 684 So.2d 591, 599 (Miss.1996).

¶45. Instructions defining reasonable doubt are not proper. Gray v. State, 351 So.2d 1342, 1348
(Miss.1977). This Court finds that Instruction D-6 was essentially an attempt to define reasonable doubt.
The trial court properly denied its admission.




VI. THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT OF THE
CREDIBLE EVIDENCE IN THIS CASE AND IS CONTRARY TO LAW.




¶46. Miller contends that the verdict is against the overwhelming weight of the evidence and contrary to law.
                                                      Law

¶47. "In determining whether or not a jury verdict is against the overwhelming weight of the evidence, this
Court must accept as true the evidence which supports the verdict and will reverse only when it is
convinced that the circuit court has abused its discretion in failing to grant a new trial." Isaac v. State, 645
So.2d 903, 907 (Miss.1994).




                                                    Analysis

¶48. The record reveals that Chase died from blunt force trauma to the head. Though Miller denied abusing
Chase and attributed his death to being hit by a car, Ms. Parnell, Dr. Vanderwood, Dr.Wanger and Dr.
Haynes each testified that Chase's injuries were not consistent with being struck by an automobile. This
medical testimony considered with the fact that Chase was in Miller's sole custody prior to his death,
provided the jury a substantial basis upon which to find Miller guilty of capital murder. Accepting as true the
evidence which supported the verdict, this Court does not find that the verdict was against the
overwhelming weight of the evidence.

VII. THE CULMINATION OF ERROR IN THIS TRIAL REQUIRES REVERSAL.

¶49. Having found only harmless error in the instant case, Miller's final assignment of error is without merit.

¶50. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT ON CHANGE OF
VENUE FROM THE GREENE COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL
MURDER AND SENTENCE OF LIFE IMPRISONMENT, WITHOUT BENEFIT OF
PAROLE, GOOD-TIME, EARNED TIME OR OTHER ADMINISTRATIVE REDUCTION
OF SENTENCE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
GREENE COUNTY.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING,
HINKEBEIN, PAYNE, AND SOUTHWICK, JJ., CONCUR.


      1. Stanley McLeod, the Sheriff of Green County, examined Ms. Bradley's car. He determined that
      the front bumper was approximately sixteen (16) or seventeen (17) inches from the ground. The rear
      bumper measured approximately fifteen (15) inches from the ground.

      2. Ms. Graham previously testified that Miller stated that Chase had been hit by a car.
