Gandy v. State

• Citation: 373 So.2d 1042
• Decision Date: 15 August 1979
• Docket Number: No. 51148,51148
• Parties: Ulysses S. GANDY v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1042

373 So.2d 1042

Ulysses S. GANDY v. STATE of Mississippi.

No. 51148.

Supreme Court of Mississippi.

Aug. 15, 1979.

Walker & Turner, Randolph Walker, West Point, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, BROOM and BOWLING, JJ.

PATTERSON, Chief Justice, for the Court:

Ulysses S. Gandy appeals from his second conviction of manslaughter. In Gandy v. State, 355 So.2d 1096 (Miss.1978), we reversed Gandy's conviction and remanded the case to the Circuit Court of Oktibbeha County for a new trial. This trial again culminated in a verdict of guilty and a sentence of ten years in the state penitentiary.

Gandy assigns as error:

1. The court committed reversible error in overruling appellant's request for peremptory instruction and motion for new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence.

2. The court committed reversible error in refusing Instruction D-13.

3. The court committed reversible error in admitting into evidence State's Exhibits 1, 5 and 7.

4. The court committed error by not giving the jury a recess for food or refreshments during its deliberations.

At approximately 10:30 on the evening of June 26, 1976, the appellant was involved in a two-car collision on Mississippi State Highway 25 about four miles south of Starkville. The highway runs generally in a north-south direction, with an unobstructed view in both directions on a straight stretch of road at the scene of the accident.

The appellant was driving a Pontiac automobile in a southerly direction and Daniel Palmer was driving a Toyota automobile in a northerly direction when the collision occurred. Although the appellant was not seriously injured, Daniel Palmer and the two passengers in his automobile were killed. No person now living witnessed the collision except Gandy though a number of persons arrived at the scene shortly after the two automobiles had come to rest following impact.

The testimony concerning the positions of the automobiles after impact conflicted. Jerry Devine, an acquaintance of Gandy, testified that he was the second to arrive at the scene. He found the Toyota in the northbound lane of the highway headed north and the Pontiac in the southbound lane headed south with its left front wheel on the center line of the highway. Several other witnesses who arrived at the scene shortly after the collision testified they observed both vehicles several feet apart in the northbound lane of the highway, the Pontiac headed south and the Toyota headed north with debris from the collision concentrated in the northbound lane between the two.

Testimony concerning Gandy's intoxication at the time also conflicted. Jerry Devine testified that although he did not converse with Gandy he did stick his head inside Gandy's automobile shortly after the accident while he helped an officer remove Gandy's wallet. Devine stated that although he did not himself drink, he knew the smell of alcohol and smelled none in Gandy's car. Dr. Conner, a longtime physician of appellant and his family, treated Gandy beginning at about 11:30 p. m. following the accident. Based upon his contact with Gandy at the time of treatment, he was of the opinion that Gandy had not been drinking. He noted that Gandy cooperated in the emergency room and suggested that natural deficiencies in his speech which were known to him might have made Gandy appear less lucid to others.

Bobby Poe, another acquaintance of Gandy, spent about fifteen minutes with Gandy at the hospital X-ray room late on the night of the accident. Poe had difficulty remembering who assisted him in the X-ray room that night but said he did remember that he smelled no alcohol about Gandy's person. Also, at about 1:30 a. m., some three hours after the accident, a nurse noted on a medical report that Gandy appeared "alert and oriented."

On the other hand, nine witnesses testified to various circumstances which suggested that Gandy was extremely intoxicated at the time of the collision. Witness Benny Rogers testified that at the scene of the collision he placed his head in the open window of Gandy's car and detected a "strong" odor of alcohol. Highway Patrolman R. N. Pearson stated that the smell of alcohol was "very evident inside the car and around . . . Mr. Gandy." Constable Robert Howell detected "odors of beer" in Gandy's car and stated that Gandy "was drunk" when he spoke with him at the scene. Chief Deputy Sheriff Dell Wilson also talked with Gandy at the scene; before Gandy was moved from his car, Wilson detected "a very strong odor of liquor and beer" about Gandy's person. He further testified that Gandy at that time did not appear to be "in control of his faculties," concluding that Gandy "was intoxicated." Highway Patrolman Lynn Christopher "could . . . smell liquor" in Gandy's car and noticed "a beer can and an empty whiskey bottle on the floorboard." Also, when he saw Gandy once more, about an hour later in the hospital, he "could smell liquor" on Gandy's breath. Christopher testified that Gandy was "very intoxicated" on the night of the accident.

Medical technician Rick Hailey stuck his head in Gandy's car before Gandy was removed from it and detected a "very strong" odor of alcohol on Gandy's breath. Another medical technician, Dan Seale, helped remove Gandy from his car. At that time, he noticed that Gandy "smelled like alcohol" and concluded that Gandy was "drunk." In describing the strength of the odor, Seale stated, "on a scale of one to ten I'd say ten." In the hospital that night, X-ray technologist Rebecca Walker "came as close as a foot away from (Gandy)," smelled the odor of alcohol, and concluded that Gandy had been "drinking."

Finally, Melinda Richardson, a registered nurse who adjusted a cervical collar on Gandy at the collision scene, accompanied him to the hospital, and helped suture his facial cuts, "smelled a very strong odor of alcohol on his breath." Several of these witnesses testified that on the night of the accident Gandy spoke in a slurred, incoherent fashion. One of the officers testified that at the hospital on the night of the accident Gandy stated, "(m) e and some dudes drank some whiskey and I drank three or four cans of beer."

Leroy Tate testified that about 2:00 p. m. on the eventful day he, Gandy, and Gandy's brother purchased a case of 16-ounce cans of beer which they divided among themselves between two and three o'clock that afternoon. Tate stated that he observed Gandy drink two cans of beer and did not believe him to have been intoxicated when he last saw him at about five o'clock. Two witnesses conceded on cross-examination that Gandy's peculiar speech may have been the result of trauma from the collision rather than from drinking. There was testimony of one or more witnesses that Gandy stated, shortly after the collision, he was in his proper lane of traffic and that the Toyota crossed into it.

I.

The standard of proof against which we test the first assignment of error is that employed in all criminal prosecutions beyond any reasonable doubt. The jurors obviously believed the testimony of the state's witnesses concerning the position of the cars immediately following the accident and Gandy's intoxication. As is usual in jury cases, the evidence conflicted, but the conflict does not necessarily create a "reasonable doubt" of appellant's guilt. Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution. Shannon v. State, 321 So.2d 1 (Miss.1975).

On review, if there is competent evidence to support the verdict, it will be upheld. Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959); Rogers v. State, 219 Miss. 231, 68 So.2d 105 (1953); Byrd v. State, 154 Miss. 742, 123 So. 867 (1929); Ransom v. State, 149 Miss. 262, 115 So. 208 (1928). Presently there was sufficient evidence, in our opinion, for the jury to determine that Gandy was intoxicated and in the wrong lane of traffic at the time of the collision.

We are impelled to this conclusion, because the evidence shows there were two damaged automobiles, their bumpers aligned face to face in a single lane of traffic, leaving the jury free to infer without reasonable doubt, in the absence of contrary evidence, (1) that a crash occurred shortly before, (2) that the cars had not been moved from their immediate post-collision resting places, and (3) that the crash occurred in the lane of traffic where the cars and most of the debris appeared. The jury settled upon the reasonable explanation that the intoxicated appellant drove completely into the wrong lane of traffic. It resolved the conflicting evidence adversely to the appellant to the exclusion of potential theories unattractive to common sense. Compare Voyles v. State, 362 So.2d 1236, 1243 (Miss.1978).

Mississippi Code Annotated section 97-3-47 (1972) reads as follows:

Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be...