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McCarty v. State

Court of Appeals of Mississippi

October 31, 2017

GRACE ANN MCCARTY A/K/A GRACE ANN WOODS A/K/A GRACE ANN PROCTOR A/K/A GRACE A. MCCARTY A/K/A GRACE MCCARTY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/23/2016

         ATTALA COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

         EN BANC.

          WILSON, J.

         ¶1. Grace Ann McCarty was indicted for depraved-heart (second-degree) murder after she killed her husband, Joel, by backing his car over him in the driveway of their home. Grace claimed that Joel's death was an accident, but the jury found her guilty of manslaughter, and the court sentenced her to twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of post-release supervision. On appeal, Grace argues that there was insufficient evidence to sustain the conviction and that the jury's verdict was against the overwhelming weight of the evidence. She also argues that the trial judge should have granted her motion for a mistrial based on her allegation that Joel's cousin was "coaching" a witness during the trial. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Around 5 p.m. on November 2, 2014, Grace, Joel, Grace's ten-year-old daughter (Patricia), and Joel's adult son (Jay) were at the McCartys' home in Kosciusko. Jay testified that Grace and Joel were in front of the house and arguing about something. Jay could not recall the subject of the argument. Grace was "wanting to go somewhere" in Joel's car, a Chrysler PT Cruiser, but Joel told her "that she wasn't taking that car nowhere." Joel told her that "[h]e could call somebody to come get her or something, " but he said, "That's the only vehicle I got right now and you're not taking it."

         ¶3. Jay testified that Grace got in the car despite what Joel had said. Patricia also got in the car. Joel responded by sitting down in the driveway several feet behind the car. Jay walked over to Joel and stood next to him. He urged Joel to get out of the driveway and go inside the house. Joel refused, stating that Grace was "not leaving in the car." Joel told Jay that it was "all right" and that he (Jay) should go back inside. Jay turned and started to walk back to the house. As he did, he heard the car back up and run over Joel.

         ¶4. Jay acknowledged that his memory was impaired as a result of head injuries that he suffered in a car accident when he was in college around 1995. He still sees a doctor about issues related to his injuries, and he takes medication for anxiety or agitation caused by the injuries. Jay testified that he takes a notebook with him everywhere and makes daily notes to help him remember things, but he did not write any notes about the day that Joel was killed. Jay testified that he could remember his father being run over because an event like that will "stick" in his mind. However, he could not remember where the family had been earlier that day, what Grace and Joel were arguing about, why they had gone outside the house, or other details about the day.[1] Jay also acknowledged that he discussed the incident with Joel's relatives before he spoke to police. He did not speak to the police until two or three months after the incident, and Joel's brother and uncle went with him when he did.

         ¶5. After the car backed over Joel, he was still breathing, but he was non-responsive and bleeding profusely. Grace called 911, and a recording of the call was admitted into evidence at trial. Grace told the 911 operator that she ran over Joel by accident. She said that "all [she and Patricia] were doing was going to the mailbox." An ambulance and police responded to the scene. Grace then told one of the officers that she and Patricia were going to a friend's house to retrieve Halloween decorations when she accidentally ran over Joel. Joel was taken to a local hospital and later died from his injuries.

         ¶6. Grace was arrested at a gas station later that evening for driving with a suspended license. Police were called to the gas station because of an argument between Grace and Joel's other son, Shay.

         ¶7. The following day, Grace gave a statement to Detective Mark Hill. Grace told Hill that she had been upset the night before and might have said some things that were not accurate. Grace said that Joel had been drinking heavily, that he and Jay were arguing, that both were very loud and upset, and that Joel had threatened to kill himself. Grace said that she and Patricia went to the car because they were afraid of Joel and Jay. She denied that she knew that Joel was sitting behind the car. Grace also told Hill that there were video cameras outside the house that might have recorded the incident, and she consented to a search of her residence for any video footage.

         ¶8. Hill went to the McCartys' home to check for any video footage recorded by the outside cameras. There were three cameras outside the house, but only two were plugged in and working. One camera was pointed toward the front porch, but it did not record any footage at or near the time that Joel was run over. A camera pointed down the driveway did capture video of the incident. However, for reasons that are not clear, the video starts just before the car backs over Joel.[2]

         ¶9. The video shows Joel sitting on the driveway with his legs crossed several feet behind the car. The car is already running. A male voice says something unintelligible, and then the car suddenly starts to back up. Joel tries to dive out of the way, but the car hits him. The right rear tire of the car drives over him. And then the right front tire drives over him before the car finally comes to a stop. Grace and Patricia exit the car. Patricia can then be heard screaming, and Jay can be heard yelling unintelligibly at Grace.

         ¶10. At trial, Grace testified that on the day in question, she, Joel, Patricia, and Jay all drove to Ethel to visit her father's grave because it was her father's birthday. She testified that she drove because "Joel had been drinking too much." She testified that Joel became "upset" at the cemetery because he remembered that "he had not gotten his mother and father a tombstone yet." On the drive back to Kosciusko, Joel and Jay "argued quite a bit." When they got home, Grace started making supper, but Joel was still upset about the tombstone and about financial difficulties. Joel and Jay continued to argue, and Grace could not calm them down. Joel became "irate" and "talked about killing himself, " and Jay was also angry and cursing.

         ¶11. Grace testified that she and Patricia were afraid of Joel and Jay. She testified that after she put supper on the table, she and Patricia slipped out the door and ran to the car. According to Grace, Joel and Jay "did not know [she] was leaving, " and she did not see or hear either of them follow her outside. She testified that she turned on the car and pushed the gas, and the next time she saw Joel was "when he was in front of [the] car after [she] had run over him." The next time she saw Jay was "a few seconds later." Grace claimed that she stopped the car as soon as she realized she had hit something, although both the rear and front tires drove over Joel. Grace testified that she never saw Jay outside of the house.[3]

         ¶12. Patricia's testimony at trial was generally consistent with Grace's testimony. Like Grace, Patricia testified that she did not see Joel outside the house until after the car had backed over him. Patricia testified that she saw Jay standing on the sidewalk next to the driveway just as the car started to back up.

         ¶13. Grace testified that she told the 911 operator that she was only going to the mailbox because her driver's license was suspended. Grace claimed that she was afraid that, if she told the truth, she would be arrested for driving with a suspended license and she would be not be able to go to the hospital with Joel.

         ¶14. Grace also claimed that when Detective Hill came to her house the next day, he found and the two of them watched a second video that was recorded by the surveillance cameras. She testified that the video showed her and Patricia running down the walkway to the car, and then Joel ran out behind them and "sat down behind [the] car" just before she backed over him. Grace claimed that, after watching the video, Hill assured her that the case should never go before a grand jury because it was "obvious" that it was an accident and that she could not have seen Joel. Grace's mother also testified that she heard Hill make these assurances. However, Hill denied that he had seen such a video or made any such statements. Grace testified that she did not "believe that [Hill] would lie" but "maybe he had forgotten" about this evidence.

         ¶15. During the trial, after the State and defense had both rested, Grace made a motion for a mistrial, alleging that Joel's cousin David had "coached" Jay during Jay's testimony in the State's case-in-chief. In a hearing outside the presence of the jury, Grace offered testimony from three people who had been in the audience during Jay's testimony. Two of the witnesses were close friends of Grace's attorney. The third was the publisher of the local newspaper. They testified that they observed David nodding his head in an "exaggerated" manner during Jay's testimony. One testified that Jay seemed to "pause" before answering questions, but none of the witnesses observed any eye contact between Jay and David. Nor could any of them say that Jay appeared to be taking cues from David.

         ¶16. David and Jay both denied that any "coaching" occurred. David testified that he was simply reacting to Jay's testimony, just as he did during other witnesses' testimony. The trial judge found that the allegation of coaching was "absurd, " and he denied the motion. The judge stated that he "certainly" would have noticed "any type of coaching" because he was seated "less than six feet from [Jay]" with "a complete clear view of everyone . . . in the audience of the courtroom."

         ¶17. After the presentation of the evidence, the court instructed the jury on depraved-heart murder, culpable-negligence manslaughter, and heat-of-passion manslaughter. Grace initially objected to an instruction on heat-of-passion manslaughter, arguing that there was insufficient evidence of provocation or "heat of passion." However, after the trial judge ruled that he would instruct the jury on culpable-negligence manslaughter, Grace's attorney specifically stated that she had "no objection" to an instruction on heat-of-passion manslaughter. The instruction on the form of the verdict did not require the jurors to specify a theory of manslaughter if they found Grace guilty of manslaughter. The jury returned a verdict finding Grace "guilty of manslaughter." The circuit court sentenced Grace to serve twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of post-release supervision. The court subsequently denied Grace's motion for judgment notwithstanding the verdict or a new trial, and Grace appealed.

         ANALYSIS

         ¶18. As noted above, Grace argues that the evidence was insufficient to support the conviction, that the jury's verdict was against the overwhelming weight of the evidence, and that the trial judge erred by denying her motion for a mistrial. In addition, the dissent argues that a mistake in the jury instruction on culpable-negligence manslaughter requires a new trial, although Grace did not raise the issue at trial or on appeal. We address these issues in turn.

         I. Weight and Sufficiency of the Evidence

         ¶19. As noted above, the trial judge instructed the jury on two theories of manslaughter: culpable-negligence manslaughter and heat-of-passion manslaughter. Grace challenges the sufficiency of the evidence and the jury's verdict on both theories. We address the two theories of manslaughter separately below, but we start with two overarching rules that govern our review.

         ¶20. First, our Supreme Court has held "in a number of cases and in a wide variety of contexts that, where there is in the record evidence legally sufficient to support a jury finding of guilty of murder, had the jury so found, the defendant will not be heard to complain that a manslaughter instruction was given." Jackson v. State, 551 So.2d 132, 146 (Miss. 1989). "This has been held so even though the manslaughter instruction was not warranted under the evidence." Id. (emphasis added). When "a defendant is convicted of manslaughter upon an instruction granted by the [S]tate to that effect and the evidence would have justified a conviction of murder, the instruction on manslaughter, even if not authorized by the evidence, does not constitute reversible error." Grace v. State, 379 So.2d 540, 542 (Miss. 1980) (emphasis added). Therefore, in the present case, if the State presented sufficient evidence of the greater offense of depraved-heart murder, Grace cannot complain that the jury instead convicted her of the lesser offense of manslaughter-even if there is insufficient evidence of "heat of passion" or some other element of manslaughter. Id.; Cole v. State, 405 So.2d 910, 913 (Miss. 1981).[4]

         ¶21. Second, "reversal is not warranted when the jury is presented with alternative factual theories, but one of those theories is factually inadequate to sustain the conviction." Batiste v. State, 121 So.3d 808, 840 (¶57) (Miss. 2013) (citing Griffin v. United States, 502 U.S. 46, 59 (1991)). "This is because 'jurors are well equipped to analyze the evidence." Id. (quoting Griffin, 502 U.S. at 59). We presume that the "jury was perfectly capable of sifting through the evidence and was able to discard any factually insufficient theories." Id. at (¶58) (quoting Fulgham v. State, 46 So.3d 315, 325 (¶28) (Miss. 2010)). Therefore, in the present case, the manslaughter conviction must be affirmed if the State presented sufficient evidence of either heat-of-passion manslaughter or culpable-negligence manslaughter-even if we find that "one of those theories is factually inadequate to sustain the conviction." Id. at (¶57).[5]

         ¶22. Thus, based on these two rules, we must affirm the manslaughter conviction in this case if the evidence was sufficient to sustain a conviction for either the indicted offense of depraved-heart murder or either theory of manslaughter that was submitted to the jury.

         A. Standards of Review

         ¶23. When we address a challenge to the sufficiency of the evidence, the question is not whether this Court "believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So.2d 836, 843 (¶16) (Miss. 2005), abrogated on other grounds by Little v. State, No. 2014-CT-01505-SCT, 2017 WL 454674, at *1, *3-*4 (¶¶1, 14-21) (Miss. Oct. 12, 2017)) (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)).

         ¶24. "When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. at 844 (¶18). The evidence must be "[v]iewed in the light most favorable to the verdict, " and we must affirm unless "[t]he trial court . . . abuse[d] its discretion in denying a new trial." Id. at (¶19).

         ¶25. The role and function of an appellate court is materially different from the "role and function of the jury." Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983). Our Supreme Court recently made clear that when a defendant challenges the sufficiency of the evidence or argues that the verdict is against the weight of the evidence,

neither this Court nor the Court of Appeals assumes the role of juror on appeal. We do not reweigh evidence. We do not assess witnesses' credibility. And we do not resolve conflicts between evidence. Those decisions belong solely to the jury.

Little, 2017 WL 4546740, at *1 (¶1); see also id. at *4 (¶20).

         B. Depraved-Heart Murder

         ¶26. As discussed above, Grace was indicted for depraved-heart (second-degree) murder, and the trial court instructed the jury on that charge. The jury found Grace guilty of the lesser offense of manslaughter; however, our Supreme Court has held that if the evidence is legally sufficient to find the defendant guilty of murder, the defendant cannot complain that she was instead convicted of manslaughter. See supra (¶20) & n.4. Accordingly, we discuss the sufficiency of the evidence as to the charge of murder.

         ¶27. Second-degree murder is "[t]he killing of a human being without authority of law" by "an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual." Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014). "Depraved-heart murder and culpable negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness . . . ." Hawkins v. State, 101 So.3d 638, 643 (¶17) (Miss. 2012). The Supreme Court has described conduct "evincing a depraved heart" as "grave recklessness manifesting utter disregard or indifference to [a] resultant creation of eminent danger to [human] life." Windham v. State, 602 So.2d 798, 802 (Miss. 1992). "Depraved-heart murder encompasses 'a reckless and eminently dangerous act directed toward a single individual, ' from which malice is implied." Holliman v. State, 178 So.3d 689, 698-99 (¶20) (Miss. 2015).

         ¶28. In this case, the State presented sufficient evidence of the essential elements of second-degree murder. Jay's testimony was sufficient to support the State's theory that Grace knew that Joel was sitting behind her car when she ran over him. This testimony was, at minimum, sufficient for a rational juror to find that Grace acted with "grave recklessness manifesting utter disregard or indifference to [a] resultant creation of eminent danger to [Joel's] life." Windham, 602 So.2d at 802. Under Supreme Court precedent, the sufficiency of the evidence as to murder disposes of any challenge to the sufficiency of the evidence of manslaughter. See supra (¶20) & n.4.

         C. Culpable-Negligence Manslaughter

         ¶29. Under Mississippi law, "culpable negligence" is "negligence of a degree so gross as to be tantamount to a wanton disregard, or utter indifference to, the safety of human life." Hawkins, 101 So.3d at 643 (¶17). Culpable-negligence manslaughter simply involves a lesser degree of "culpability" and "recklessness" than depraved-heart murder. Id. As there was legally sufficient evidence of depraved-heart murder, there was also legally sufficient evidence of culpable-negligence manslaughter.

         ¶30. While not disputing that there was legally sufficient evidence of culpable negligence, the dissent argues that the verdict was against the overwhelming weight of the evidence. We disagree. Jay testified that Joel and Grace argued in the driveway as she was getting into the car, that Joel specifically told Grace that he would not allow her to leave in his car, and that Joel then sat down in the driveway behind the car. Jay testified that he then walked over to Joel and stood next to him, talked to him, and urged him to move out of the way. When Joel refused, Jay walked away, and Grace ran over Joel. If the jurors found Jay's testimony credible on these material points, they were justified in concluding that Grace knew that Joel was behind the car and intentionally backed over him. At the very least, the jury could have found that Grace drove the car toward Joel with "wanton disregard, or utter indifference to, " his life. Hawkins, 101 So.3d at 643 (¶17).

         ¶31. The dissent's contrary analysis essentially adopts Grace's arguments that Jay's testimony was not credible because of his impaired memory and the possible influence of Joel's family. Contrary to the Supreme Court's recent decision in Little, supra, the dissent expressly asserts the prerogative to make its own judgments of "witness credibility." Post at (¶81).[6] However, Little expressly reaffirmed that appellate courts "do not assess the witnesses' credibility" and cannot "make witness-credibility determinations." Little, 2017 WL 4546740, at *1, *4 (¶¶1, 20). Rather, "the jury [is] the sole judge of the credibility of the evidence and the weight and worth of their testimony." Id. at *4 (¶20) (quoting Gathright v. State, 380 So.2d 1276, 1278 (Miss. 1980)).

         ¶32. "Despite the impeachment of [Jay], the jury remained the ultimate decision-maker as to what weight and worth to give his testimony." Jordan v. State, 763 So.2d 935, 937 (¶4) (Miss. Ct. App. 2000); accord Ivy v. State, 764 So.2d 476, 478 (¶4) (Miss. Ct. App. 2000); Brown v. State, 764 So.2d 463, 467 (¶11) (Miss. Ct. App. 2000). It is the jury's responsibility to judge the credibility of the witnesses. Little, 2017 WL 4546740, at *1, *4 (¶¶1, 20). "[I]t is not this Court's function to determine whose testimony to believe and as such we should not disturb a jury's finding on conflicting testimony where there is substantial evidence to support the jury's verdict." Bridges v. State, 716 So.2d 614, 617 (¶15) (Miss. 1998). "The testimony of a single uncorroborated witness is sufficient to sustain a conviction, even though there may be more than one person testifying to the contrary." Williams v. State, 512 So.2d 666, 670 (Miss. 1987) (citations omitted) (affirming the denial of the defendant's motion for a new trial). "Unless testimony necessary to support the jury's verdict is so implausible or so substantially impeached as to be unworthy of belief, the jury's decision in such matters is beyond the authority of a reviewing court to disturb." Brown, 764 So.2d at 467 (¶9).

         ¶33. While Grace raised legitimate questions about Jay's memory and motives, these were ordinary issues of impeachment and credibility for a jury to resolve. There was no physical evidence or objective evidence that impeached the material points of Jay's testimony. Nor does the overwhelming weight of the evidence show Jay's version of events to be "implausible." The jury was entitled to find Jay more credible than Grace and the other defense witnesses and return a guilty verdict.

         ¶34. In contrast to its treatment of Jay's testimony, the dissent is understanding of Grace's own shifting stories. The dissent notes that the day after Grace ran over Joel, "she volunteered" that her "prior stated reasons" for leaving the house "were not accurate." Post at (¶84). That is one way to put it, but the jury was entitled to conclude that Grace came up with a third lie only after realizing that neither of her first two stories-going to the mailbox and to retrieve Halloween decorations-provided a plausible or satisfactory explanation for how Joel ended up beneath the wheels of his car.

         ¶35. The dissent also says that the video in evidence "does not impeach Grace or Patricia's testimony, nor does it corroborate Jay's." Post at (ΒΆ86). This is an odd way to put it because the converse is (at least) as true-i.e., the video does not impeach Jay's testimony, nor does it corroborate Grace's. The video starts just before Grace backs over Joel. Joel is already seated behind the car when the video begins, and he tries to dive out of the way when he realizes that the car is moving ...


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