McCarty v. State, 2016–KA–00602–COA

• Decision Date: 31 October 2017
• Docket Number: NO. 2016–KA–00602–COA,2016–KA–00602–COA
• Citation: 247 So.3d 260
• Court: Mississippi Court of Appeals
• Parties: 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

247 So.3d 260

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

NO. 2016–KA–00602–COA

Court of Appeals of Mississippi.

October 31, 2017

Rehearing Denied March 6, 2018

Certiorari Denied June 7, 2018

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., FOR THE COURT:

¶ 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...