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
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/23/2016
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
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.
AND PROCEDURAL HISTORY
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."
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.
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
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
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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."
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
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.
Weight and Sufficiency of the Evidence
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.
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).
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).
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.
Standards of Review
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)).
"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).
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
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
Little, 2017 WL 4546740, at *1 (¶1); see
also id. at *4 (¶20).
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.
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)
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.
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.
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).
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). 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
"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).
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.
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
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 (¶86).
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