Ellison v. State

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BYRON ALLEN ELLISON APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2022-KA-00462-COA

Court of Appeals of Mississippi

August 29, 2023

DATE OF JUDGMENT: 04/18/2022

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. CHRISTOPHER LOUIS SCHMIDT TRIAL JUDGE

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY ZAKIA BUTLER CHAMBERLAIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY CASEY B. FARMER

DISTRICT ATTORNEY: WILLIAM CROSBY PARKER

BEFORE BARNES, C.J., McCARTY AND EMFINGER, JJ.

BARNES, C.J.

¶1. A Harrison County Circuit Court jury convicted Byron Ellison of capital murder in connection with the death of his infant son, and the trial court sentenced Ellison to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or early release. Ellison argues on appeal that he is entitled to a new trial because (1) the verdict was against the overwhelming weight of the evidence, and (2) the trial court erred by allowing a sleeping juror to continue to serve on the jury or, alternatively, that his defense counsel rendered ineffective assistance by not moving to have the juror removed.^[1] We affirm the judgment, finding that the verdict is supported by the evidence and that Ellison waived his argument regarding the trial court's failure to remove the sleeping juror. However, because the record is insufficient to address the merits of Ellison's alternative ineffective-assistance-of-counsel claim, we affirm the judgment without prejudice so that Ellison may seek permission from the Mississippi Supreme Court to file a motion for post-conviction collateral relief (PCR) should he wish to do so.

FACTS AND PROCEDURAL HISTORY

¶2. Ellison and Jessica Smith began dating in 2017, and Smith became pregnant in January 2018. Smith had a difficult pregnancy; so she and Ellison moved into his parents' home in Gulfport. Smith's doctors diagnosed the unborn child with an esophageal issue that would require surgery upon birth. On August 17, 2018, Smith gave birth to Colton Ellison by emergency cesarean section in a pre-term delivery. Colton was transferred to the neonatal intensive care unit (NICU) at Oschner's Hospital in New Orleans, Louisiana for surgery (a "TE fistula repair") and recovery. Smith and Ellison stayed in New Orleans while the baby recovered. Colton was released from the hospital in mid-September, and the family moved back to the home of Ellison's parents.

¶3. During the next three weeks, Smith took Colton to pediatrician Dr. Prashant Dixit five times with various complaints, which included diarrhea, spitting up, and some blood in his mucus "in the back of his throat." Dr. Dixit found the child had no serious issues and was gaining weight and thriving. On October 13, 2018, Smith noted swelling around Colton's eyes. She sent a photo of his swollen eyes to her mother and Ellison's mother, but she did not consult a doctor. Later that night, she showered with the baby in an effort to open up his nasal passages. Afterward, Ellison's sister admonished Smith that it was dangerous to take the child into the shower.

¶4. On October 15, Ellison stayed up late watching movies, and he went to sleep around 2:00 a.m. Colton was lying on a pillow between Ellison and Smith. At approximately 6:30 a.m., the baby woke up fussy; so Smith changed his diaper and went into the kitchen to prepare a bottle. A few minutes later, Ellison informed her that something was wrong with Colton. The baby had gone limp and was struggling to breathe. Smith took the child from him and told Ellison to call 911. The 911 dispatcher told Smith to start CPR, which she performed until the paramedics arrived.

¶5. The paramedics found two-month-old Colton unresponsive with no pulse. One paramedic noted that Colton had two black eyes and some bruising on his arm. The paramedic managed to get Colton's heart beating, and the baby was taken to a nearby hospital where he was determined to be in critical condition. The treating physician noted the bruising around Colton's eyes. His pupils were also fixed and dilated, indicating "neurologic deterioration." The doctor determined Colton's injuries could not be accidental.

¶6. Colton was transferred to Oschner's Hospital on life support. Pediatric neurosurgeon Dr. Cuong Bui concluded that Colton had "fairly extensive, devastating, widespread injury to the brain" and that "surgical intervention" would not save his life. Colton was taken off life support on October 18, 2018.

¶7. Colton's death was investigated for abuse. Ellison waived his Miranda rights^[2] and gave a recorded interview with Investigator Anthony Piazza. Ellison's story about what happened that morning changed three times. At first, Ellison stated he had been "bouncing Colton lightly on his knee." Then, he said that Colton's head may have "bounced . . . off his collar bone" while he was trying to soothe the child. Lastly, he suggested that Colton possibly fell off the bed.

¶8. On September 17, 2019, a Harrison County grand jury indicted Ellison for the capital murder of his son Colton, with child abuse and/or battery of a child as the underlying felony. See Miss. Code Ann. § 97-5-39(2) (Rev. 2014). A jury trial was held before the Harrison County Circuit Court on March 28-31, 2022.

¶9. Brett Taylor, a paramedic who responded to the 911 call, testified that he arrived at approximately 10:00 a.m. and discovered a firefighter giving an infant CPR. The only persons he observed in the room were Smith, the firefighter, and Colton. Initially, Colton was not breathing and did not have a pulse. Taylor also noted Colton had "racoon eyes" on both sides. Continuing CPR, Taylor moved the child to the ambulance and put him on ventilation. It was then that Taylor noted bruising on the child's right arm. He did not notice any obstruction to Colton's airway. The ambulance took Colton to Garden Park Memorial Hospital. Smith and Ellison arrived at the hospital, and Taylor asked Ellison if the child had been injured. Ellison denied there had been any injuries or incidents (such as the baby's falling).

¶10. Smith testified that she and Ellison "[h]ad a positive and healthy relationship" at the beginning. Approximately six months into her pregnancy, she and Ellison moved into his parents' home. Neither she nor Ellison was employed at that time. She went into labor early and had a "C-section procedure." Colton had to be transferred to the NICU because he "had esophogram [sic] problem[s], . . . [and] [t]here was holes in his lungs."

¶11. According to Smith, she was the primary caregiver, "but [Ellison] helped some." She claimed Ellison would get "agitated" by Colton's crying and "would call him a little sh*t and ask [Smith] to get him to stop crying." Smith showered with Colton on one occasion, thinking that the steam would be good for his nasal passages. On the morning of October 15, 2018, Smith was preparing a bottle when Ellison brought the baby into the kitchen. Colton "could not hold his head up, his arms were like spaghetti arms, and he was struggling to breathe, and he was not crying." Smith asked Ellison to call 911. Ellison did not call right away but eventually did, and Smith began CPR under the 911 dispatcher's instruction.

¶12. Smith spoke to a Harrison County police officer at the hospital; then she went to her father's house in Long Beach and on to Oschner's Hospital with her father and stepmother. Smith attended the first "brain-death" examination of Colton. She felt "[a]ngry" and [b]roken" and was "in denial." Smith did not attend the child's second brain-death examination because she "could not handle it." She admitted that she "was intoxicated [at that time] because [she] was depressed and grieving and my child was dying." Smith was angry at Ellison and had not spoken to Ellison since Colton's death. She admitted that she did not know what happened in the bedroom that day. When asked about showering with the child, Smith said Ellison's sister admonished her that it was dangerous to take the child into the shower. But she insisted that neither she nor Colton had fallen. When asked about the results of a CT scan at Garden Park Memorial Hospital, Smith recalled the doctor asked, "[D]id somebody drop this child, and they said that my child had a cracked skull."

¶13. Investigator Piazza testified that he was alerted to "a baby that was unresponsive." He learned upon arriving at the local hospital that the child "had sustained double brain bleeds." The investigator interviewed Ellison for several hours. Ellison told Investigator Piazza that he had been "bouncing Colton lightly on his knee" when the baby "began gasping for air." Ellison "tapped his feet, rubbed him a little bit," but Colton "just completely went unresponsive." The investigator said Ellison "later changed his story and stated that while bouncing Colton[,] . . . Colton's head may have bounced off his collar bone." Ellison's statement then changed "to Colton possibly fell off the bed." The audio and video recording of Ellison's statement was played for the jury.

¶14. Investigator Piazza did not observe any bruises or injuries on Ellison during the interview (in connection with Ellison's claiming the child's head bounced off his collarbone).

He also noted Colton had no bruising on his forehead. Defense counsel asked the investigator about his interview with Smith; he could not recall specific details of their conversation. Investigator Piazza admitted that he had referred "multiple times" during the interviews with Ellison and Smith to the child's having a skull fracture, which the investigator later discovered was not correct. Investigator Piazza explained that this misunderstanding...