Gray v. State, 2013–KA–01151–COA.

202 So.3d 243

Natyyo GRAY a/k/a Natyyo N. Gray, Appellant

v.STATE of Mississippi, Appellee.

No. 2013–KA–01151–COA.

Court of Appeals of Mississippi.

Nov. 3, 2015.

Office of State Public Defender by W. Daniel Hinchcliff, attorneys for appellant.

Natyyo Gray, appellant, pro se.

Office of the Attorney General by Scott Stuart, attorney for appellee.

Before LEE, C.J., ISHEE and CARLTON, JJ.

ISHEE, J., for the Court:

¶ 1. A jury sitting before the Hinds County Circuit Court found Natyyo Gray guilty of capital murder. The circuit court sentenced Gray to life in the custody of the Mississippi Department of Corrections (MDOC). Gray appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from the death of Aubrey Zoe Brown, the thirteen-month-old daughter of Gray and Phyllis Brown. It is undisputed that Zoe was exclusively in Gray's care for approximately two hours and forty-five minutes before he called 911 and reported that she needed emergency medical attention. It is also undisputed that Zoe died due to internal bleeding caused by significant blunt-force trauma. The jury's verdict supports the following version of events.

¶ 3. Brown went to church at approximately 11:00 a.m. on Sunday, November 20, 2011. She left Zoe at home with Gray. They were both asleep when she left. It was the last time that Brown saw Zoe alive. At approximately 1:45 p.m., three firefighters with the Jackson Fire Department were responding to Gray's 911 call. Two minutes after they were dispatched, the firefighters arrived at Brown's apartment.

¶ 4. As they pulled up, Gray ran outside with Zoe, who was in cardiac arrest. According to one of the firefighters, Gray was pressing Zoe's stomach. Firefighter Zeric Washington took Zoe from Gray and started performing chest compressions. Lieutenant Mario English placed an “ambu bag ” over Zoe's mouth to deliver oxygen. Because Lieutenant English had experience performing CPR on infants, he and Washington soon switched places.

¶ 5. When an ambulance arrived minutes later, Lieutenant English rushed Zoe to EMT Andrew Aycox and paramedic Joey Sanders. As Sanders placed leads on Zoe's chest to monitor the electrical activity of her heart, he noticed bruising on her abdomen. Sanders later testified that the bruising appeared to be the product of a “significant amount” of blunt-force trauma. According to Sanders, it was the “type of injury that you would see in high [-]speed ... car accidents.” Gray told Sanders that he had pressed on Zoe's abdomen to relieve constipation, and later in an attempt to perform CPR. Because Zoe's injuries did not match Gray's version of events, Sanders refused to let Gray ride in the ambulance. Washington rode in the ambulance and assisted with CPR while Zoe was rushed to Baptist Hospital a few miles away.

¶ 6. Emergency-room physicians Dr. Paul Zoog and Dr. Paul Petty were on duty when Zoe arrived. She was still in cardiac arrest. Dr. Zoog and Dr. Petty both noticed bruising on her abdomen. She also had bruises on her forehead, cheek, and the back of her head. Additionally, there were lacerations in her mouth, and her maxillary frenulum was torn.¹ Through the efforts of personnel at Baptist Hospital, Zoe's heart began to beat on its own. Approximately thirty-four minutes after she arrived, Zoe was rushed to Batson Children's Hospital at the University of Mississippi Medical Center (UMMC).²

¶ 7. Dr. Nancy Wahl and Dr. Sarah Sterling treated Zoe at Batson Children's Hospital. Dr. Wahl and Dr. Sterling both noticed bruising on her abdomen. Dr. Wahl also compared Zoe's injuries to the aftermath of “a motor [-]vehicle collision.” A CT scan of Zoe's abdomen revealed that she was bleeding internally from multiple liver lacerations and the area around her duodenum. Zoe had lost approximately one-half of her entire blood volume. According to Dr. Wahl, Zoe was bleeding internally as fast as they could give her transfusions. During the eighty minutes the personnel at Batson Children's Hospital treated Zoe, she received transfusions amounting to almost her entire blood volume. Despite their efforts, Zoe's blood pressure was never high enough to treat her surgically. Zoe died at 4:29 p.m.

¶ 8. At that time, Gray was a detective with the Jackson Police Department. A number of his fellow officers went to the hospital in either a personal or professional capacity. Five officers later testified that while they were at Batson Children's Hospital, Gray said that he had killed Zoe by pressing on her stomach to relieve her constipation and improperly performing CPR.

¶ 9. Later that day, Gray was transported to the police department for questioning. Gray waived his right to remain silent and gave a statement. Gray was later indicted for capital murder, which was elevated based on the allegation of felony child abuse. Gray pled not guilty. Gray's trial attorneys and the prosecution exchanged numerous volleys of pretrial motions, which we will address as necessary below.

¶ 10. Gray's trial began on February 11, 2013. Jury selection lasted that entire day. The prosecution called twenty-six witnesses over four days. Briefly summarized, numerous witnesses testified that the blunt-force trauma to Zoe's abdomen lacerated her liver and essentially tore her pancreas in half. A number of witnesses also testified that Zoe's injuries were the product of child abuse, and they were not caused by massaging her stomach or improperly performing CPR by pressing on her abdomen. The prosecution called five physicians as expert witnesses who testified that without medical intervention, Zoe would have died less than an hour after sustaining her fatal injuries. The prosecution rested its case-in-chief on February 19, 2013.

¶ 11. Gray testified in his own defense. Gray claimed that he was not responsible for Zoe's fatal injuries. His defense theory was to blame Brown for Zoe's fatal injuries. According to Gray, Brown had spanked Zoe before she went to church. Gray testified that Zoe behaved unusually from the time that they woke up after Brown left. He claimed that Zoe was limp, she would not stand up or walk, she stared into space, and she would not eat or drink. When she started behaving as though she was constipated, he rubbed her abdomen. He claimed that when she stopped breathing, he tried to perform CPR by pressing on her abdomen.

¶ 12. Gray also testified that the firefighters who responded to his 911 call never performed CPR on Zoe after they arrived, and all three who testified otherwise were lying. According to Gray, they simply watched him push on Zoe's abdomen and suggested that he hold her nose and breathe less forcefully into her mouth. Gray claimed that he carried Zoe to the ambulance, and the emergency responders acted casually while he continued to press on her stomach.

¶ 13. Gray also testified that Zoe did not have any bruising in his care or at any time before she arrived at Batson Children's Hospital. According to Gray, “[s]omething happened to [Zoe] while she ... was being treated.” Gray claimed that the police officers who testified that he had said that he killed Zoe were all either lying or testifying based on rumors that they had heard from others.

¶ 14. Gray called Dr. Steven Hayne as an expert witness.³ Essentially, Dr. Hayne testified that Zoe could have lived up to five hours without medical intervention after she received her fatal injuries. In other words, Dr. Hayne's testimony indicated that Zoe would have been in Brown's care at the time she sustained her fatal injuries. Dr. Hayne based his testimony on the levels of certain biochemical markers in Zoe's tissues, rather than the rate at which she was bleeding internally, which he characterized as uncertain based on the undefined characteristics of the liver lacerations.

¶ 15. The prosecution called two rebuttal witnesses. Brown said that she did not spank Zoe the morning that she died. The prosecution also recalled Dr. Scott Benton,⁴ who had testified during the prosecution's case-in-chief. During his rebuttal testimony, Dr. Benton refuted Dr. Hayne's testimony that Zoe sustained her fatal injuries at approximately 9:30 or 10:00 a.m. Dr. Benton reiterated his opinion that Zoe would have died within minutes of her fatal injuries without medical intervention. He also refuted the methodology by which Dr. Hayne arrived at his opinion. That is, Dr. Benton testified that concentrations of various substances in the body cannot be used to extrapolate the time of an injury. Quoting a 2012 article in a medical journal, Dr. Benton explained that hopefully “some day, someone will discover a suitable chemical biomarker within the human body whose concentrations can be quantitatively tracked over time to ... predict the time of death.” However, he testified that there is no current medical “science that justifies the use of biochemical markers ... to backdate [a] death.” He further explained that Dr. Hayne's methodology was inaccurate because there is no precise way to extrapolate the time of an injury based on the number of white blood cells in human tissue. Finally, Dr. Benton testified that Gray's testimony was inconsistent with Dr. Hayne's because if Zoe suffered the fatal injuries at 9:30 or 10:00 a.m., and Gray had pressed on her abdomen, Zoe would have been “screaming in pain,” and Gray did not testify that she had done so.

¶ 16. On February 21, 2013, the jury found Gray guilty of capital murder. A week later, the circuit court conducted a sentencing hearing and sentenced Gray to life without the possibility of parole.⁵ Following his unsuccessful motion for a judgment notwithstanding the verdict (JNOV), Gray appeals.

¶ 17. On appeal, Gray's appointed attorney argues that Gray received ineffective assistance of counsel at trial for multiple reasons, including that his trial attorneys failed to adequately interview witnesses, failed to request an accident instruction, and failed to request a manslaughter instruction. Gray has also...