Robert GROSECLOSE v. STATE of Mississippi, 440 So. 2d 297

DAN M. LEE, Justice, for the Court: I. On April 4, 1981, Robert Groseclose shot and killed his ex-father-in-law, John Mulh-earn, Sr. He was convicted of murder in the Circuit Court of Jefferson County and sentenced to life imprisonment. The issue of Groseclose’s sanity on April 4, 1981, predominated at trial. In spite of impressive expert testimony that Groseclose was insane, the jury convicted. Under our familiar and normally laudable rules limiting our power to review jury verdicts in criminal cases, we must affirm. II. A. The facts of this tragic killing of an innocent citizen are not disputed.

By way of background, Robert Groseclose and Ruth Mulhearn were married in 1966. Three children were born of their union. The family lived in Texas. By 1976 it had become evident that Groseclose was seriously mentally ill. Various attempts at treatment, including three hospitalizations, accomplished little — in substantial part because Groseclose refused to cooperate. All of this led to the divorce of Ruth and Robert Groseclose in November of 1980. Ruth resumed her maiden name, Mulhearn, obtained custody of the three children, and moved to her father’s home outside of Natchez, Mississippi.

Some six months later, on April 4, 1981, Groseclose came to visit. Ruth, her father, John Mulhearn, Sr., and two of the children were at home. Ruth and Robert met outside. After several moments of seemingly normal conversation, Ruth noticed Robert walking toward her pointing a gun directly at her. Groseclose said, “You’re not going to poison my children’s minds any more. I’m going to blow your head off.” Ruth began pleading for her life and screamed for help. She dropped to the ground as Groseclose began firing. She crawled around the car. Groseclose pursued.

When directly in front of the car, he held the gun on the hood and pointed it directly at Ruth’s head saying, “I’m going to kill you. I’m going to blow your head off.” Ruth kept ducking and crawling around the car until she bumped into something, looked down, and saw her father lying there on the ground, his hand nearly blown off and blood everywhere. “Bob, you shot daddy!” she screamed. Law enforcement authorities were ultimately summoned to the Mulhearn residence. When they arrived, they found Gro-seclose standing in the driveway holding a gun.

He pointed out John Mulhearn, Sr. who was lying on the ground, dead. A deputy sheriff placed Groseclose under arrest, read him his rights, and searched him, finding a knife in the back of his belt. Asked why he had the knife, Groseclose replied, “Sometimes a gun won’t shoot.” Groseclose added, “I’ve done what I come to do.” B. The bulk of the trial concerned Grosec-lose’s mental illness. Ms. Mulhearn described her ex-husband as “a mean man”. She stated that three or four years earlier he had been diagnosed as having a chemical imbalance.

He had a serious drinking problem, which, in turn, was compounded’ by drug use. Groseclose was admitted to hospitals for mental treatment in Abilene, Texas, Chicago, Illinois, and Kerrville, Texas. He was prescribed medication but often refused to take it. The defense offered three expert witnesses, Dr. Donald C. Guild and Dr. Robert L. McKinley, Jr., both psychiatrists, and Dr. Charleton S. Stanley, a psychologist. Each had examined and treated Groseclose extensively at the Mississippi State Hospital at Whitfield following his arrest but prior to trial.

The psychiatric and psychological history fills hundreds of pages in the record. No useful purpose would be served in reciting it here. Suffice it to say that Drs. Guild, McKinley and Stanley were unanimous in their opinion that Groseclose was severely mentally ill. The diagnosis assigned was schizophrenia, paranoid type, chronic, severe. Each testified at trial, relying upon a substantial foundation in the record, that at the time of the shooting Groseclose did not know the difference between right and wrong and that he lacked substantial capacity to appreciate the nature and quality of his actions.

Summarizing the cross-examination, the State concentrated on the seemingly normal things that Groseclose did on April 4, 1981. At various times one or more of the experts conceded that Groseclose’s actions on that day could indicate that he knew the nature and quality of his actions. In rebuttal, the State called eight lay witnesses, each of whom had observed Gro-seclose at various times just prior to or just subsequent to the shooting. Mrs. Frank Walden testified she picked Groseclose up hitchhiking. She said there was nothing unusual about him.

Justice Court Judge John Bailey had observed Groseclose for some 30 to 45 minutes on the morning in question and in his opinion Groseclose knew right from wrong. Deputy Sheriff Don Ward was the first law enforcement officer to arrive on the scene. He remained for approximately one hour. He testified that in his opinion Groseclose knew right from wrong and could appreciate the quality of his actions. Sharon Powell, who lived some 35 miles from Natchez, was called as a witness by the State. She testified that on April 4, 1981, Groseclose came to her door and asked if she. would buy his shotgun.

He said he needed gas but had no money. He said he was going to his ex-wife’s home in Natchez. She did not buy his shotgun, but did take him to the store and help him get some gas. She testified that Groseclose appeared normal, that she was not afraid of him. Tina Thorpe testified that Groseclose came into her store with Mrs. Powell to get gas on the day of the shooting. She said he appeared perfectly rational and normal. Tom Coleman, a highway patrolman, found Groseclose stopped on the side of the road on April 4, 1981, and took him to get gas. Coleman was with Groseclose for approximately ten minutes.

He said Groseclose appeared rational and normal. Coleman testified that he later responded to a call for help in transporting a murder suspect back to town. He arrived at the Mulhearn residence and saw Groseclose. Coleman said Groseclose recognized him and thanked him for the help he had given him on the highway earlier that day. Deputy Sheriff Jimmy Wallace also saw Groseclose for approximately ten minutes on April 4, 1981. He said that Groseclose had the ability to appreciate the nature and quality of his actions. Ruth Mulhearn and her brother, John Mulhearn, Sr., were hardly disinterested witnesses.

Still each testified to having known Groseclose for approximately 15 years. Each saw him for approximately 30 minutes on April 4, 1981. Each offered an opinion that Groseclose was sane at the time of the killing. C. At the conclusion of all of the evidence, the jury was fully and adequately' instructed regarding the principal issue in the case, that of the Defendant Groseclose’s sanity at the time of the killing. In due course the jury returned a verdict of guilty of the crime of murder.

On October 28, 1981, Groseclose filed a motion for judgment of acquittal notwithstanding the verdict of the jury or, in the alternative, for a new trial. That motion was amended on November 3, 1981, and was in due course overruled. This appeal has followed. III. By far the most serious error assigned is that the jury’s verdict is against the overwhelming weight of the evidence and that, accordingly, a new trial should be ordered. We have literally hundreds of decisions considering the circumstances under which we will vacate a jury’s verdict in a criminal case and remand for a new trial.

We will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system. In criminal cases generally, we have repeatedly stated our view of the role and function of the jury. For example, in Gandy v.

State, 373 So.2d 1042 (Miss.1979), we wrote: 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 finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augumented 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) 373 So.2d at 1045. In Bond v. State, 249 Miss. 352, 162 So.2d 510 (1964), this Court stated: It is the function of the jury to pass upon the credibility of the evidence. Scott v. State, 185 Miss. 454, 188 So. 546.

Only two witnesses testified for the state as to what happened at the scene of the homicide, while many more testified for the defense. However, the strength or weakness of testimony is not measured by the number of witnesses. Spiers v. State, 231 Miss. 307, 94 So.2d 803.

In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the state and part of that for the accused, and the credibility of such witnesses is not for the reviewing court, but only for the jury. Ivey v. State, 206 Miss. 734, 40 So.2d 609; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Matthews v. State, 243 Miss. 568, 139 So.2d 386, 249 Miss. at 357, 162 So.2d at 512. We apply these well settled principles to the case at bar.

In doing so, we note that this is not the first time we have confronted the sort of record we have before us — one where at trial the psychiatric testimony overwhelmingly supports the proposition that the accused was insane at the time of his criminal actions, but where lay testimony, particularly that from law enforcement officers is to the contrary. We have carefully reviewed these earlier cases, such as Gambrell v. State, 238 Miss. 892, 120 So.2d 758 (1960); and Holloway v. State, 312 So.2d 700 (Miss.1975) and have compared and contrasted those decisions with Smith v.

State, 245 So.2d 583 (Miss.1971); and Lias v. State, 362 So.2d 198 (Miss.1978). In Gambrell and Holloway we held that, on the facts of those cases, guilty verdicts were against the overwhelming weight of the evidence. In Smith and Lias the facts were such that the jury verdicts were not disturbed. Thoughtful and candid consideration will make clear that these decisions are not wholly consistent one with the other. We take the Lias case, however, as this Court’s most recent attempt to deal with this perplexing problem, as setting forth the principles we ought follow here.

Psychiatric and psychological expert witness testimony, while admissible and indeed quite desirable, is not the last word. Lay testimony has long been recognized as being equally admissible and useful where the insanity defense is tendered. Smith v. State, supra, 245 So.2d at 585; Lias v. State, supra, 362 So.2d at 201. Expert witnesses cannot recreate what occurred in the accused’s mind at the time of the criminal act, nor could they, even if they were there, look inside that mind and ascertain what was there. As in all branches of medicine, they must of necessity rely substantially on history.

It is within the actual and judicial knowledge of this Court that mental health professionals routinely place great reliance upon history obtained from lay witnesses. Our law does no less when it accepts the admissibility of lay witness testimony. Having in mind our limited scope of review, and having well in mind the testimony of the various lay witnesses recited in

Section II above, there was indeed before the jury an evidentiary basis upon which a verdict of guilty could be based. Accordingly, Groseclose’s motion for judgment of acquittal notwithstanding the verdict was correctly overruled. Similarly, the substantial lay testimony in this record is sufficient to require a holding here that the verdict was not so contrary to the overwhelming weight of the evidence as to require a new trial. We say this on the authority of Lias v.

State, 362 So.2d 198 (Miss.1978) and out of our recognition that institutional and practical considerations mandate that in insanity defense cases, perhaps more than any other, a jury’s verdict ought be given great respect and deference. IV. Groseclose assigns as error the trial judge’s .admission into evidence a single photograph depicting the victim’s body. This photograph showed the positioning of the body at the time the law enforcement officers arrived at the scene. It is not inordinately gruesome. Its receipt into evidence was well within the trial judge’s discretion. Hogan v.

State, 366 So.2d 1089 (Miss.1979). Bruce v. State, 349 So.2d 1068, 1071 (Miss.1977); Curry v. State, 328 So.2d 328, 330 (Miss.1976); May v. State, 199 So.2d 635, 640 (Miss.1967). We decline to disturb the trial judge’s ruling. V.

Groseclose next complains of the trial judge’s refusal to grant defendant’s Instruction D-18, which reads as follows: The Court instructs the Jury that if you determine from the credible evidence in this case that the Defendant could very possibly have been, or actually was, insane at the time of the shooting on April 4,1981, then it is your sworn duty to find the Defendant not guilty by reason on insanity. He argues that this instruction was essential to the fair presentation of his insanity defense to the jury.

A review of the record makes it clear that the trial judge granted at the Defendant’s request six instructions covering various features of the insanity defense, those being Instructions D-2, D-5, D-7, D-8, D-9 and D-12. These Instructions, coupled with State’s Instructions S — 1, S-2 and S-7 make it clear that the jury was more than adequately instructed on the insanity issue. As announced by this Court many times, all instructions should be read together, and if the jury is fully and fairly instructed by other instructions, the refusal of a similar instruction .is not reversible error. Barr v.

State, 359 So.2d 334, 338 (Miss.1978). Cf. Wilson v. State, 390 So.2d 575 (Miss.1980); Jones v. State, 381 So.2d 983, cert. den. 449 U.S. 1003, 101 S.Ct. 543, 66 L.Ed.2d 300 (Miss.1980). This same sentiment was expressed in McWilliams v. State, 338 So.2d 804 (Miss.1976): The trial court is not required to instruct the jury over and over on a principle of law, even though some variations are used in different instructions. 338 So.2d at 806. Beyond that, the Instruction D-18 is confusing. It should not have been given as written. Smith v. State, 296 So.2d 678, 682 (Miss.1974); Rush v.

State, 278 So.2d 456, 458 (Miss.1973). Groseclose’s assignment of error here is without merit. VI. We have considered the other errors assigned by Groseclose and find none well taken nor warranting discussion. We, therefore, affirm. AFFIRMED. PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, PRATHER and ROBERTSON, JJ., concur. BOWLING, J., not participating.