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MARY ANN GERLACH v. STATE OF MISSISSIPPI

MARCH 20, 1985

MARY ANN GERLACH
v.
STATE OF MISSISSIPPI



BEFORE, WALKER, P.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal follows the conviction of Mary Ann Gerlach on the charge of murder for which she was sentenced to a term of life imprisonment. On appeal Gerlach assigns that the trial court erred in: (1) allowing a said-to-be-improper hypothetical question posed to the psychiatric expert for the State, (2) failing to declare a mistrial or to discharge juror Carvin because of a mid-trial telephone call she received from an unidentified third party, and (3) refusing to grant a new trial on grounds that the jury verdict was against the overwhelming weight of the evidence.

 II.

 It is undisputed *fn1 that on January 7, 1981, at approximately 6:00 p.m., Mary Ann Gerlach, Defendant below and Appellant here, shot and killed Lawrence A. Kietzer in the house located at 120 Lorraine Road in Harrison County, Mississippi. Gerlach had divorced Kietzer a few weeks prior but was nonetheless living with him at the time of the shooting. Gerlach apparently still held an insurance policy on Kietzer's life.

 After the shooting, Gerlach phoned for the police. By the time the police arrived, Gerlach had gone to a neighbor's house. Gerlach was hysterical, fought with the police and attempted to kill herself. After succumbing to police force but before being taken away to the mental ward, Gerlach arranged with a neighbor to take care of her pets. Subsequent to being placed in the mental ward, Gerlach sent money back to a neighbor to provide for care for her son.

 On March 16, 1981, Gerlach was formally charged in an indictment returned by a Harrison County Grand Jury with the murder of Keitzer. In due course thereafter, Gerlach entered a plea of not guilty by reason of insanity.

 On January 19, 1982, this case was called for trial. Consistent with Gerlach's plea, the testimony centered around the insanity defense. This issue is encapsuled in the disputed hypothetical question posed by the district attorney to a psychiatrist called by the State.

 Doctor, if you have a forty-four year old white female, who has a history of some 13 marriages, the first one taking place at approximately 15 years of age, having had three children, excuse me, four children, four live births, at least one abortion, who has had numerous hospitalizations in Kesler Air Force Base, Gulf Coast Community Hospital, Gulfport Memorial Hospital, Howard Memorial Hospital, who has had episodes of hysteria, suicidal tendencies, and admitted abuser of drugs and alcohol, who on January 7, 1981, shot and killed, as she fired five shots into her husband's body, excuse me, into the body of a man she was living with, having previously divorced this man, some eight weeks prior, with that hypothetical, do you have an opinion as to the sanity or insanity of that person on that date?

 The remainder of the iceberg of Gerlach's psyche includes the fact that she is a "hooker" who owns 14 to 15 wigs. Apparently, Gerlach's wearing of different wigs is symptomatic of distinct personality changes. One of her daughters -- who was a potsmoker, hooker and had been institutionalized for mental problems -- had committed suicide.

 Gerlach's matrimonial sequence at times was a bit bizarre:

 Q. Now, when you married -- after you were marred to Jerry Teeple, you were married to who next?

 A. Larry Potter.

 Q. How long were you married to him?

 A. Just a few months.

 Q. Then you married who?

 A. Jim Nix.

 Q. That is the one that ...


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