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MAY 28, 1986




Curtis Norris was convicted of aggravated assault for knowingly causing bodily injury to Terry Winstead by stabbing him with a knife. Norris was sentenced to fifteen (15) years in the Department of Corrections by the Circuit Court of Neshoba County, Mississippi.

Norris, a veteran of the Vietnam war, suffers from post-traumatic stress syndrome. On the night of May 5, 1984, while Norris, a patient at the Veterans Hospital, was out on a pass from that institution, he became an uninvited guest at the Neshoba County fairground cabin of Terry Winstead, where a party was in progress. Norris had consumed four or five quarts of beer and was taking medication, including valium. Around 11:00 p.m., Norris got into a scuffle with Doug Hardin, an invited guest. Ever the good host, Winstead intervened and attempted

 to escort Norris from the cabin. Norris struck Winstead, and Winstead, having gone as far as he could in deference to the customs of Southern hospitality, struck Norris back. Carl Ellis eventually got Norris outside and Norris left the cabin area. Approximately one hour later, Norris returned to the party and when the unarmed Winstead told him to leave Norris pulled a knife and stabbed Winstead in the stomach. The resulting wound, a cut from 1% to 2 inches long, bled profusely. Winstead was taken to get medical attention and Norris was disarmed and arrested.

 After the incident of May 6, 1983, Norris was returned to the Veterans Hospital and there remained until July 2, 1984.

 Norris was indicted on September 20, 1984, and on the 21st he filed notice that he intended to rely upon the defense of insanity at the time of the crime. He moved for psychiatric examination, which was conducted by Dr. Timothy Summers. Dr. Summers concluded, as a result of the examination, that Norris knew the difference between right and wrong at the time of the crime and that he was competent to stand trial and participate with his attorney in his own defense.

 The two-day trial began on September 26, 1984. Norris's motion for a directed verdict at the conclusion of the state's case was overruled. Norris then testified, and Dr. Stanley Russell also testified in his behalf as to the insanity defense. The state presented Dr. Summers in rebuttal on the insanity issue.

 Found guilty by the jury, and sentenced to fifteen (15) years, Norris moved for a new trial. When he failed to get a new trial, he appealed to this Court. I.


 Instruction S-4 offered by the state is the "McDaniel Rule" that voluntary intoxication is not a defense to a crime. Norris objected that insanity, not intoxication, was his defense and, therefore, the state had no entitlement to instruction S-4. Norris argued to the trial judge that McDaniel v. State, 356 So.2d 1151 (Miss. 1978) was inapplicable as the case was governed by Lee v. State, 403 So.2d 132 (Miss. 1981), which held that the state was not entitled to a "McDaniel Rule" instruction to avoid

 the burden of proving intent.

 The trial judge ruled that both sides had gone into the question of the condition of Norris with regard to alcohol and drugs, and thus the intoxication issue was before the jury. Furthermore, the trial judge found that while both doctors agreed that Norris suffered from post-traumatic stress disorder, they disagreed as to his mental condition at the time of the stabbing. Therefore, the trial judge reasoned that there was a factual issue under M'Naughten for the jury to decide, and a M'Naughten instruction (S-2) had been given.

 Concluding that the jury could find that Norris was not M'Naughten insane at the time of the trial, the judge found that the evidence required him to instruct the jury that voluntary intoxication was not a lawful defense. Reluctantly, the trial judge granted instruction S-4. Norris again alleges that the record clearly shows that his defense was that of not mentally knowing right from wrong and at no place was the issue as to intoxication made a defense; his testimony concerning alcohol and drug abuse was only in reference to symptoms of post-traumatic stress disorder. Norris further contends that instruction S-4 caused the jury to find him guilty and to disregard his insanity plea defense.

 In McDaniel v. State, supra, we said:

 If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.

 356 So.2d at 1161 (Sugg, J., concurring, with a majority of the Court agreeing with the rule).

 We followed this rule in Harris v. State, 386 So.2d 393 (Miss. 1980). In Lee v. State, 403 So.2d 132 (Miss. 1981), the issue concerned the amendment, by the trial judge, of the defendant's instruction by adding the McDaniel rule. There we said the following:

 The McDaniel rule prevents "submission to a jury the question of voluntary intoxication as a defense in specific intent

 offenses." 356 So.2d at 1161. An amplified restatement of the rule is: a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed. The rule was followed in Harris, supra.

 In this case defendant was not entitled to the instruction in question, either as submitted by him, or as modified by the trial judge.

 Id. at 134.

 The Court additionally said the following:

 We hasten to add that voluntary intoxication is not a substitute for intent. Trial courts must remember that the purpose of the McDaniel rule is to remove voluntary intoxication as a defense, not to provide an affirmative instruction for the state which might mislead a jury into thinking that it is not necessary to prove intent, when intent is a requisite ingredient of the offense.


 It is this last statement that Norris contends is authority for reversal. However, in Smith v. State, 445 So.2d 227 (Miss. 1984), one of the assignments was that the court erred in granting a McDaniel rule instruction to the state. We noted the McDaniel and Lee cases, and then said the following:

 The McDaniel court did not limit the question of voluntary intoxication to instructions either for the State or the accused. The rule is simply and clearly stated therein and means that, if a person, when sober, is capable of distinguishing right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible

 and he may be convicted and sentenced for the crime.

 445 So.2d at 231. Further, in Jackson v. State, 381 So.2d 1040 (Miss. 1980), we did not find that it was error for the court to give a McDaniel rule instruction.

 As Justice Hawkins has said, "the horns were extended to their original McDaniel length" in Smith, after he had attempted to "pull in the horns in Lee." Cummings v. State, 465 So.2d 993, 998 (Miss. 1985), (Hawkins, J., dissenting).

 Cummings is further authority for the conclusion that the state can be granted a McDaniel rule instruction. The complaint of Cummings that his instructions concerning intoxications as a defense should have been granted was held meritless on the authority of McDaniel; however, Cummings also contended that the two refused instructions, in conjunction with the McDaniel rule instruction granted for the state necessitated a reversal. The Court said, "Instruction S-3 . . . does no more than set forth for the jury's guidance the rule pronounced in McDaniel thereby leaving this contention without merit." 465 So.2d at 996.

 Norris argues that his case is distinguishable from McDaniel and its progeny because he did not make intoxication a defense. True he did not request an intoxication defense instruction; however, it is clear that intoxication was made an issue by Norris regardless of whether it was expressly made a defense.

 It is apparent that a jury could reasonably infer from the testimony of Norris that, because he was so drunk, he did not know what he was doing. From that, a reasonable juror could infer that Norris did not have the requisite intent to commit the crime; this is exactly what the McDaniel rule prohibits. Where, as in this case, the evidence justifies it, the state may be granted a McDaniel instruction.

 As to the second claim of Norris that instruction S-4 caused the jury to find him guilty and to disregard his defense of insanity, one needs only to read all the instructions together to find that it was clear that the jury was instructed as to the state's burden in proving all the elements of the crime and in proving that Norris was sane. See Johnson v. State, 475 So.2d 1136 (Miss. 1985); Norman v. State, 385 So.2d 1298 (Miss. 1980).

 There is no merit to this assignment.




 The essential contention of Norris under this assignment is that it was undisputed by both psychiatrists that Norris suffered from post-traumatic stress disorder, and that since his psychiatrist was in a better situation to evaluate whether Norris was M'Naughten sane at the time of the incident, and it was his opinion that Norris was insane, the jury verdict was against the overwhelming weight of the evidence.

 While couched in the overwhelming weight language, this assignment is little more than the pitting of one expert against the other, and seeking to have the court instruct the jury which expert they must believe.

 Dr. Stanley Russell was the psychiatrist who testified for Norris. He had been treating Norris at the Veterans Administration Hospital in Jackson intermittently since January of 1982. He had diagnosed Norris as suffering from post traumatic stress disorder. In summary, Dr. Russell's testimony was that this is a psychiatric condition common among Vietnam veterans in which the individual has been subject to a traumatic experience which was so overwhelming that he is not able to deal with it effectively. The effect is that the condition may remain latent, with subconscious effects only, until something triggers it, causing the individual to have what is referred to as a "flashback" wherein he thinks he is back in the same traumatic situation and he reacts accordingly.

 When Norris was returned to the hospital on May 6, immediately after the incident, he discussed it with Dr. Russell. It was Dr. Russell's opinion that Norris had perceived himself in a hostile environment at the cabin and it had triggered a flashback. According to Russell, in Norris's mind he was back in Vietnam and simply defending himself from being killed as he would have in Vietnam and not in Philadelphia, Mississippi.

 Dr. Russell admitted that his conclusions were based on what Norris had told him, and that it was possible that Norris was just drunk and mad, though he did not consider it likely. Dr. Russell also stated that even though Norris was intoxicated that would not change his opinion that Norris had had a flashback on May 6 when the stabbing occurred. In response to questioning as to whether Norris knew right from wrong, Dr. Russell stated in essence that Norris was responding to a different situation from that which the others present were perceiving. Norris was responding to a similar situation to what he would have confronted in combat; there, right and wrong carried a different connotation.

 Dr. Timothy Summers, who had examined Norris on September 24, 1984, pursuant to court order, testified for the state. He admitted that Norris did suffer from post traumatic stress disorder. He disagreed with Dr. Russell, however, and stated that it was his opinion that at the time the incident occurred Norris knew right from wrong. It was further the opinion of Dr. Summers that drinking, combined with the amount of valium that Norris was taking, could have caused his behavior to the exclusion of any flashback experience.

 The jury also was treated to actual occurrence witnesses Winstead, Debbie Ellis and Carl Ellis, all of whom indicated that Norris appeared just to be angry about being thrown out of the cabin and was responding to being thrown out again.

 As we have stated many times in challenges that a jury verdict on an insanity issue was against the overwhelming weight of the evidence, the issue is a jury issue and in making the determination the jury may take into consideration all of the testimony surrounding the homicide including such expert testimony as may be offered. Laney v. State, No. 56,116 (Miss., decided March 19, 1986) (not yet reported); Billiot v. State, 454 So.2d 445 (Miss. 1984); Edwards v. State, 441 So.2d 84 (Miss. 1983); Groseclose v. State, 440 So.2d 297 (Miss. 1983); Lias v. State, 362 So.2d 198 (Miss. 1978); Herron v. State, 287 So.2d 759 (Miss. 1974); and Smith v. State, 245 So.2d 583 (Miss. 1971).

 No doubt to some the testimony of Dr. Russell, who saw Norris the day before the incident and the morning after the incident, will be more persuasive than the testimony of Dr. Summers. However, this was not the case to the jury at the trial. We cannot say, when we consider

 all of the facts and circumstances surrounding the incident which was presented to the jury as well as the expert testimony of the two doctors, that the decision of the jury was against the overwhelming weight of the evidence.

 It may well be that post-traumatic stress disorder is a special case as is schizophrenia, paranoia type, which should be treated in a manner different from that which is set out above. At least two justices on this Court have spoken eloquently but to date unconvincingly that the M'Naghten test and our present rules on the insanity defense are no longer feasible.

 Be that as it may, M'Naghten is still the test in Mississippi, and the jury must still make the determination from the evidence presented before it. We will not disturb the finding of that jury unless it is contrary to the substantial weight of the evidence. There is no merit to this assignment of error.



 Our rule in this regard is that, while should be liberally allowed, the scope of the cross-examination rests within the sound discretion of the trial court and is subject to reversal only upon a clear abuse of that ...

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