IN THE SUPREME COURT OF MISSISSIPPI

NO. 91-KA-01276-SCT

FRAZIER LEE JONES

v.

STATE OF MISSISSIPPI

CONSOLIDATED WITH

NO. 92-KA-00190-SCT

SUE ANN JONES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 11/1/91

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: CLARKE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: DAVID A. STEPHENSON

ANTHONY H. OGLESBY

GEORGE S. SHADDOCK

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEAN SMITH VAUGHAN

DISTRICT ATTORNEY: NA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 7/25/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 8/15/96

EN BANC.

PITTMAN, JUSTICE, FOR THE COURT:

¶1. Appellants, Sue Ann Jones, and her husband, Frazier Lee Jones, were found guilty of the crime of

manslaughter, while engaged in the crime of child abuse/neglect. Miss. Code Ann. §§ 97-3-29 and

97-5-39 (1972). Sue Ann and Frazier Lee appealed this decision based on several assignments of

error. Finding that the testimony of a public welfare worker was improperly admitted and exceeded

the witness' knowledge, thereby creating undue prejudice, we reverse and remand.
I.

¶2. On August 30, 1989, Shanquie Monae Jones [hereinafter "Monae"] was brought into the

emergency room at Watkins Hospital in Quitman County. Monae was the daughter of Frazier Lee

and Sue Ann Jones. After an examination, the doctor on duty determined Monae was suffering from

a ruptured colon. Monae was transferred to Anderson Memorial Hospital for examination and

treatment by a pediatrician. While at Anderson, Monae went into cardiovascular arrest and died at

the age of eleven months.

¶3. Sue Ann and Frazier Lee Jones, were indicted for manslaughter committed while engaged in the

crime of child abuse/neglect. The trial proceeded on two theories; the State attempted to show that

the child died either as a result of medical neglect and/or malnourishment or from cocaine in her

system resulting from culpable negligence on the part of defendants.

¶4. At trial, the physician/pathologist who performed the autopsy determined there were two causes

of death: 1) a perforation in the colon causing infection of the abdominal cavity; and 2) elevated

levels of cocaine in the infant's bloodstream. The doctor stated that Monae's abdomen could have

been in this condition anywhere from 24 to 72 hours before her death. Furthermore, he testified that

this condition would have been noticeable or visible due to the swelling and rigidity.

¶5. The State presented several witnesses who described Monae's malnourished and swollen

condition. They also produced a toxicologist who testified to the means and methods by which

cocaine could have entered the blood stream, including, oral ingestion, intravenous injection and

passive ingestion, which is similar to passive smoke inhalation. There was also inference made to a

small child finding a rock of crack cocaine and swallowing it, which would create a high level of the

drug within the blood stream.

¶6. The defense countered with testimony by Sue Ann that she did not use drugs and had never seen

her husband use them. A neighbor and Sue Ann's sister also testified that they did not know of Sue

Ann or Frazier ever using drugs and that they were good parents.

¶7. The defense assigns several errors. Upon consideration of these issues, we find only one issue, the

testimony of Carolyn Smith, merits reversal of the trial court's decision.

¶8. We would at the outset note the difficulty in trying these two cases together and recommend on

remand that the trial court again consider severance. Failure to sever is raised as error only by Frazier

Lee and he does not sufficiently show prejudice in this record to cause reversal on that issue. We do

not direct severance.

II.

¶9. Frazier Lee and Sue Ann argue that the testimony of Carolyn Smith, the welfare worker, created

undue prejudice and constitutes reversible error. Specifically, they argue that Smith's testimony was

beyond her knowledge or expertise.

¶10. During the course of her investigation, Smith viewed the child's records and medical reports.

She testified that Sue Ann was not reliable about taking her children to the Health Department when
she was supposed to. In addition, she stated that she was certain the cocaine found in Monae's blood

stream resulted from vaporization. Smith testified that she learned this information from the chemist

involved in the case after the trial began. However, neither that chemist nor any other expert testified

as to the vaporization process. The only reference made to that was by Sam Howell, the toxicologist,

who discussed it as one of several ways in which the cocaine could have entered the infant's blood

stream. The defense objected at trial to Smith's testimony concerning how the cocaine got in Monae's

blood on the grounds that she had no knowledge on which to base such an opinion. The trial court

allowed the testimony, and Sue Ann maintains this is reversible error. The State argues only that

Smith's testimony was cumulative and previously admitted via the other witnesses' testimony,

therefore its admission was harmless.

¶11. Smith testified as follows:

Q: In other words, you saw, in your opinion, that the mother loved the child and that she would

not have done anything to harm it. . . . That if it was, in fact neglect, it was through ignorance

rather than intentionally.

A: That's what I thought until yesterday when I found out a little bit more about cocaine. . .

. I would say that I did not feel that Sue Ann Jones was responsible for the child's death until

yesterday. This was a big mystery to me. Nobody knows how this child got cocaine, and yet she

died of an overdose.

BY MR. STEPHENSON:

Your Honor, I'm going to object to her saying whether or not she felt somebody was

responsible or not responsible. That's what the Jury is here for. She is obviously not qualified

about that. . . .

BY THE COURT:

I think the question was asked generally about what she is responding to. Overruled.

* * *

Q: You did understand prior to yesterday that a child could ingest cocaine through food or from

milk or something like that?

A: I didn't know how the child got it. I was of the opinion that it was through being mixed in

the formula . . . I had no idea it was vaporized.

Q: Why does that change your opinion of whether Sue Ann would have - even though I know

your opinion is not a medical opinion - about how the cocaine got in there . . . .

A: Because I feel certain that that's how the child got an overdose of cocaine through

vaporization.

BY MR. STEPHENSON:

Your Honor, I object. Her opinion is based on absolutely nothing. She can't just give that to the
Jury just because she believes something unless she's going to base an opinion on something.

That's totally improper.

BY THE COURT: Objection overruled.

Q: Ms. Smith, it escapes me how you can be certain that the child got cocaine through a

vaporizer.

A: Well, the child couldn't reach out, she couldn't crawl and pick it up off the floor, . . . she

couldn't feed it to herself. Somebody--she had to get it from some adult. I don't think Sue Ann

would give this child poison.

BY MR. STEPHENSON:

Your Honor, I object. She can go so far, but, I mean, she can't sit here and reenact -- I mean to

say it had to get it from an adult? That's not true. She can get it from the floor, can get it from a

child --

BY THE COURT: Objection is overruled.

¶12. Mrs. Smith testified to something of which she had no personal knowledge. No expert at trial

testified to these conclusions nor was Smith proffered as an expert concerning the methods of

cocaine ingestion. Her testimony is in the form of a lay opinion, and thus subject to Mississippi Rule

of Evidence 701. M.R.E. 701 states:

If the witness is not testifying as an expert, [her] testimony in the form of opinions or inferences

is limited to those opinions or inferences which are (a) rationally based on the perception of the

witness and (b) helpful to the clear understanding of his testimony or the determination of a fact

in issue.

¶13. Moreover, the comment to Rule 701 explains the two-part test for the admissibility of lay

witness opinion testimony. First, the testimony must assist the trier of fact. Second, the opinion must

be based on the witness' firsthand knowledge or observation. Miss. R. Evid. 701. cmt.; see also Wells

v. State, 604 So. 2d 271, 278-9 (Miss. 1992) (applying this same two-part test). The second prong of

the test is in accordance with M.R.E. 602 requiring that a witness who testifies about a certain matter

have personal knowledge of that matter.

¶14. Smith's testimony is clearly not admissible pursuant to Mississippi's evidentiary Rules 602 and

701. A layperson, such as Smith, is qualified to give an opinion because she has firsthand knowledge

which other laypeople, i.e., the jury, do not have. Wells, 604 So. 2d at 279. Here, Smith was not

present at the home the day Monae died or any day remotely prior to that day. Accordingly, Smith is

not a witness with firsthand knowledge of how Monae ingested the cocaine. Her testimony regarding

the cocaine in Monae's body is merely speculative and apparently based on what she heard others say.

Nor was her testimony cumulative as suggested by the State. This testimony was not admissible

because it is speculative and Mrs. Smith had no personal knowledge of the facts to which she

testified.

¶15. One additional note is in order. The record supports the finding of culpable negligence via the
neglect of Frazier and Sue Ann Jones. The jury could have reasonably found that they were culpably

negligent by failing to obtain prompt medical attention and by not properly supervising their child

which resulted in cocaine ingestion. It is the presence of cocaine in an eleven-month-old child and not

necessarily the way in which it got there that evidences culpable negligence. In Smith v. State, 197

Miss. 802, 818, 20 So. 2d 701, 706 (1945), this Court defined culpable negligence as "negligence of

a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of

human life, and this shall be so clearly evidenced as to place it beyond every reasonable doubt." In

Campbell v. State, 285 So. 2d 891, 893 (Miss. 1973), we further noted, "culpable negligence . . .

may be defined as the conscious and wanton or reckless disregard of the probabilities of fatal

consequences to others as the result of the willful creation of an unreasonable risk."

¶16. Therefore, that portion of Smith's testimony pertaining to the vaporization of cocaine was not

necessary to establish guilt based on culpable negligence. However, because of the certainty of

Smith's testimony and her official capacity, her testimony likely was instrumental in the jury's

decision. We find the admissibility of her testimony to be prejudicial and harmful, thus requiring a

new trial for Frazier Lee and Sue Ann.

III.

¶17. Sue Ann also assigns as error the testimony of Deputy Sheriff Falconer. The State presented

testimony by Falconer, who interviewed the Joneses after the hospital reported neglect, as well as

Smith, who investigated the Joneses on behalf of the Clarke County Public Welfare Department. In

response to a question from Frazier's attorney, Falconer stated:

I believe I asked Mr. Jones if cocaine was used as some type of tool to quiet the child down. If I

remember correctly, at that time I told him that a doctor had mentioned that was a widespread

use of cocaine as a pain killer or quietener, and he told me at that time that they never used

anything like that and that he didn't use drugs.

Sue Ann contends this created undue prejudice and merits reversal.

¶18. This issue is procedurally barred, as no objection was raised at trial preserving it for appeal.

Failure to raise a specific objection to testimony at trial will result in a waiver of this point on appeal.

Wilks v. State, 408 So. 2d 68, 69 (Miss. 1981). Furthermore, Falconer qualified the statement by

also testifying that Frazier denied using cocaine in that way or any other way. This qualification had a

tendency to lessen the effect of the testimony, and again there was no timely objection made to the

testimony. The testimony presented is harmless, despite the fact that this assignment of error is

procedurally barred.

¶19. REVERSED AND REMANDED FOR NEW TRIAL.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., AND McRAE, J., CONCUR. BANKS, J.,

CONCURS IN RESULT ONLY. MILLS, J., DISSENTS WITH SEPARATE WRITTEN

OPINION JOINED BY ROBERTS AND SMITH, JJ.
MILLS, JUSTICE, DISSENTING:

¶20. I write separately to suggest that the majority errs on the issue of Carolyn Smith's opinion

testimony. I agree with the majority that the evidence offered was not in the form of expert opinion

and was improper lay opinion. However, whether these statements were the product of an expert or

not is irrelevant. The statements were improperly admitted because there was no factual basis for the

opinion. The real issue is whether the improper admission requires reversal.

¶21. The main issue for the jury to determine is whether Jones was culpably negligent in caring for his

child by failing to seek treatment for a perforated colon or by improper supervision. Carolyn Smith's

paltry contribution to this inquiry was that she thought (1) the child died of cocaine overdose, and (2)

the parents were responsible for the presence of cocaine in her system. As stated above, Smith, a

social worker, had no factual basis for either conclusion. This made her testimony objectionable. The

self-evident fact of her speculation is what makes this testimony harmless. Smith completely

impeached her own testimony stating, "That was a big mystery to me. Nobody knows how this

child got cocaine, and yet she dies of an overdose." Moments later she stated, "I didn't know how

she got it." When the defense attorney called Smith's attention to the fact that she had no basis for

her opinion, Smith stripped away the remaining vestiges of her own credibility by departing on a

fantastic dervish of conjecture. It is a misnomer to even suggest that Smith's testimony was lay

opinion. Her testimony could more properly be classified as an experiment in clairvoyancy. To

assume that the jury was improperly swayed by this highly speculative, unfounded and substantially

impeached testimony is to fail to give sufficient credit to the average juror of our State. The majority

concludes that "because of the certainty of Smith's testimony and her official capacity, her testimony

likely was instrumental in the jury's decision." If the majority is concerned about any perceived "cloak

of authority" surrounding Smith due to her title, I again suggest that she stripped herself of any such

articles.

¶22. The majority concedes that "Smith's testimony pertaining to the vaporization of cocaine was not

necessary to establish guilt based on culpable negligence." Despite this concession, the majority

reverses for a new trial. In Wells v. State, we concluded that the error resulting from improperly

admitted lay opinion was, at best, harmless. Wells v. State, 604 So. 2d 271, 280 (Miss. 1992). In

doing so we looked at the totality of the circumstances. Id. In that case, physical documentation

independently supported the jury's finding of guilt. Id. at 280 n.5. In the present case, the record is

surfeit with corroboration of culpable negligence. Properly admitted expert testimony showed that

the infant's infected abdominal cavity was easily detectable anywhere from one to three days in

advance of the infant's admission to the hospital. I would use the Wells "independent support" test to

determine whether the error was harmless instead of adopting the majority's "likely instrumental" test.

¶23. Smith's testimony was without any value whatsoever. Thus, the admission of her testimony was

error. Simultaneously, the lack of value being self-apparent, the admission of this testimony was

harmless. I would affirm.

ROBERTS AND SMITH, JJ., JOIN THIS OPINION.