IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-KA-01308-SCT

GARY TAYLOR a/k/a GARY L. TAYLOR a/k/a GARY LYNN TAYLOR

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 06/24/1999

TRIAL JUDGE: HON. GEORGE B. READY

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: STEVEN E. FARESE, SR.

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: ROBERT L. WILLIAMS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 06/28/2001

MOTION FOR REHEARING FILED: 7/27/2001; denied 9/27/2001

MANDATE ISSUED: 10/4/2001

BEFORE PITTMAN, C.J., COBB AND DIAZ, JJ.

COBB, JUSTICE, FOR THE COURT:

¶1. Gary Taylor comes before this Court appealing from the judgment of a DeSoto County Circuit Court

finding him guilty of one count of murder and one count of causing the death of an unborn quick child. On

the first count, he was sentenced to life imprisonment. On the second count, he was sentenced to a

consecutive twenty (20) year term. Taylor filed his notice of appeal to this Court raising three issues.

I. WHETHER THE VERDICTS OF THE JURY WERE AGAINST THE WEIGHT OF

THE EVIDENCE?

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

REFUSING DEFENDANT'S JURY INSTRUCTION D-4?

III. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE

ALTERNATIVE A NEW TRIAL?

FACTS

¶2. On January 19, 1997, Teresa Strachan and her unborn child both died when Teresa suffered a gunshot

wound to the head. Strachan's body was discovered by Adrian Lewis, an officer with the Hernando Police

Department. Officer Lewis was dispatched to 2170 East Parkway, Hernando, on January 19, 1997. When

he arrived there at 8:51 a.m., he discovered Strachan's body lying in the front doorway with a gun shot

wound to the forehead.
¶3. Eddie Owen, an employee of the Hernando Ambulance Service, also responded to the Strachan home

that day. When Owen entered the house, he discovered Strachan lying inside the door with a gunshot

wound to her forehead. Strachan had also been shot in "the left shoulder," and she had "some black matter

on her forehead" and on her hand. Upon determining that neither she nor the fetus had vital signs, Owen

called the coroner, and the patrolman called the investigator.

¶4. DeSoto County Coroner Jeff Pounders arrived on the scene at approximately 10:00 that morning.

Pounders testified that Strachan had what appeared to be a "contact wound" to her forehead and a "contact

wound to her left upper chest in her shoulder area" and a superficial wound to her right hand and fingers. He

also testified, "[i]t appeared to be gun powder on her forehead."

¶5. The police had been called to the Strachan home earlier that morning. Detective Shane Ellis of the

Hernando Police Department testified that in the early morning hours of January 19, 1997, he had arrived at

2170 East Parkway in Hernando, where another officer, Kimmons Gray, was already on the scene. Gray

had retrieved a weapon and was "talking to Mr. Taylor" while Officer Ellis "took Teresa to the back

bedroom to separate them . . . ." Ellis testified that Tommy Hall, Gary Taylor, Teresa Strachan and a small

child were present at the residence. The officers determined that a shot had been fired but "they did not

come up with any physical evidence of a disturbance." Gray and Ellis concluded that this was not "any type

of domestic situation whatsoever," and after an informal conversation with Strachan and Taylor, the officers

"returned the firearm back to Teresa."

¶6. At approximately 9:00 a.m. that same day, Ellis was again dispatched to the home and, when he

arrived, he saw Teresa Strachan lying on the floor. Ellis testified he also observed "two bullet holes, one on

the north side of the door towards the bottom and one on the south side of the door towards the bottom."

¶7. Lieutenant Bob Reyna of the Hernando Police Department also participated in the investigation of the

scene of the shooting. Reyna testified that he traveled to the Hardeman County Sheriff's Department in

Bolivar, Tennessee, where Gary Taylor had been taken into custody and where Reyna received a Wesson

.357 magnum from the sheriff there, together with three live rounds and three spent rounds.

¶8. Owen, Pounders, Ellis and Reyna were each called as witnesses for the State. The State also called

Sheriff Jeter of the Hardeman County Sheriff's Department. Jeter became involved after a friend of Taylor's,

Tommy Smithson (a resident of Hardeman County), persuaded Taylor to turn himself in to the police and

his wife Janice contacted Jeter who took Taylor into custody. Smithson gave Jeter a handgun he had gotten

from Taylor. Sheriff Jeter testified as to an admission by Taylor to the effect of, " I killed her. I can't believe

I did that." Smithson was also called to testify by the State. He testified from memory and from a statement

he gave to the police the day Taylor was taken into custody in which he described other admissions by

Taylor. Taylor had told Smithson that he and Strachan argued, struggled over the gun and that he shot her.

In his statement, Smithson also related a statement by Taylor that he "shot Teresa . . . and she was nine

months pregnant." The State also called Bruce McKeen, a neighbor of the Smithson's; Strachan's mother,

Diane Caraway; Tommy Hall, a friend of Taylor; Strachan's obstetrician-gynecologist, Dr. Hai Dang and

Taylor's mother, Ruth Helton. Dr. Steven Timothy Hayne, who had performed the autopsy on Strachan's

body, was accepted by the court as an expert in the field of forensic pathology and was the prosecution's

final witness.

¶9. The defense called six witnesses. The first witness was Kerry Taylor, the defendant's ex-wife. In

addition, Jason Motz, a customer of Taylor; Jacqueline Helton, Taylor's half-sister; Jim Franks, Taylor's
former attorney; Dr. Amanda Ruffin, a clinical psychologist, and Dr. Allen Battle, who was certified by the

court as an expert in the field of clinical psychology, all testified for the defense.

¶10. The State called two rebuttal witnesses. The first was Dr. Reb McMichael, a board certified

psychiatrist with added qualifications in forensic psychiatry. The second was Paula Strachan, the victim's

sister.

¶11. The jury deliberated and returned a unanimous verdict of guilty against Taylor on one count of murder

and one count of causing the death of an unborn quick child. On the first count, he was sentenced to life

imprisonment and on the second, to a consecutive twenty-year term. Aggrieved with the judgment below,

Taylor appeals to this Court, raising three issues.

DISCUSSION

I. WHETHER THE VERDICTS OF THE JURY WERE AGAINST THE WEIGHT OF

THE EVIDENCE?

¶12. Taylor argues that both the counts on which he was convicted should have resulted in acquittals

because there was no evidence of intent. Taylor contends that there is no proof that he had the full

awareness of what he was doing and that he calculated, planned and contemplated the consequences of any

act or acts he may have committed.

¶13. In determining whether the evidence is legally sufficient to sustain the verdict, this Court must consider

the evidence in the light most favorable to the State and accept as true "[a]ll evidence supporting or tending

to support the verdict, as well as all reasonable inferences that may be drawn from the evidence . . . ."

Harrell v. State, 583 So.2d 963, 964 (Miss. 1991). If the evidence is such that fair-minded jurors might

have reached different conclusions, the verdict must be allowed to stand. Ashford v. State, 583 So.2d

1279, 1281 (Miss. 1991) (quoting Butler v. State, 544 So.2d 816, 819 (Miss. 1989)). "Matters

regarding the weight and credibility to be accorded evidence are to be resolved by the jury." Fisher v.

State, 481 So.2d 203, 212 (Miss. 1985).

¶14. When presented with a challenge to the weight of the evidence, this Court "must accept as true the

evidence favorable to the state." Van Buren v. State, 498 So.2d 1224, 1229 (Miss. 1986). "A new trial

will not be ordered unless this Court is 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." Groseclose v.

State, 440 So.2d 297, 300 (Miss. 1983).

¶15. Count 1 of the indictment charged Taylor with "deliberate design" murder. Taylor argues that there is

no proof in the record that Taylor acted with "deliberate design" to effect the death of Strachan. This Court

has held that the term "deliberate design" is interchangeable with "malice aforethought" declaring that "[i]t

has long been the case law of this state that malice aforethought, premeditated design, and deliberate design

all mean the same thing." Tran v. State, 681 So.2d 514, 517 (Miss. 1996)(quoting Windham v. State,

602 So.2d 798, 801 (Miss. 1992)). "Definitionally, we regard 'malice aforethought' and 'deliberate design'

as synonymous." Blanks v. State, 542 So.2d 222, 227 (Miss. 1989) (citing Fairman v. State, 513

So.2d 910, 913 (Miss. 1987); Johnson v. State, 475 So.2d 1136, 1139 (Miss. 1985); Lancaster v.

State, 472 So.2d 363, 367 (Miss. 1985)).

¶16. Taylor argues the record is void of proof "that Taylor had the full awareness of what he was doing and
that he calculated, planned and contemplated the consequences of any act or acts he may have committed."

Taylor cites Windham v. State, 520 So.2d 123, 126 (Miss. 1987), in arguing that "the word 'deliberate'

always indicates full awareness of what one is doing, and generally implies careful and unhurried

consideration of the consequences."

¶17. Taylor also disputes the validity of Jury Instruction 9, which instructed the jury that it must find beyond

a reasonable doubt that Taylor killed Strachan and:

that he did so with the premeditated and deliberate design to effect the death of Teresa G. Strachan

with malice aforethought or in the commission of 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 Teresa G. Strachan ....

¶18. Taylor's reliance on Windham to dispute this instruction is misplaced. The instruction deemed

erroneous in Windham included "at the moment" language that allowed for a deliberateness that developed

instantaneously with the killing. Jury Instruction 9 does not include such language. In addition, this Court

noted in Windham that "deliberate design to kill a person may be formed very quickly, and perhaps only

moments before the act of consummating the intent." 520 So.2d at126; See also Gossett v. State, 660

So.2d 1285, 1293 (Miss. 1995). Thus, Jury Instruction 9 is consistent with the precedent of this Court.

¶19. Taylor also seeks to find refuge in the Weathersby rule which this Court has enunciated as follows:

[W]here the defendant or the defendant's witnesses to the homicide are the only eyewitnesses to the

homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in

material particulars by a credible witness or witnesses for the state, or by the physical facts or by the

facts of common knowledge.

Weathersby v. State, 165 Miss. 207,147 So. 481, 482 (1933).

¶20. The State contends the Weathersby rule is of no benefit to Taylor due to later cases that developed

exceptions such as the following:

If the defendant's version of the killing is reasonable, it must, as a matter of law, be accepted as true,

unless 'substantially contradicted in material particulars by a credible witness, . . . or by the physical

facts or by facts of common knowledge. Also, Harveston v. State, 493 So.2d 365 (Miss. 1986). A

defendant who met the Weathersby Rule would be entitled to a directed verdict of acquittal.

As stated in Weathersby, and many of our subsequent decisions, this rule has no application where

the defendant's version is patently unreasonable, or contradicted by physical facts. Where the

defendant is the only eyewitness to a slaying, his version must be reasonable and credible before he is

entitled to an acquittal under the rule.

And, there is still another circumstance which still precludes the application of the Weathersby rule,

and that is where the accused, following the slaying, gives conflicting versions of how the killing took

place, or initially denies the act.

Blanks v. State, 547 So.2d 29, 32 (Miss. 1989)(citations omitted).
¶21. Thus, the Weathersby rule is not applicable because Taylor gave conflicting accounts of the shooting.

Also, his claim that the shooting was an accident is not credible in light of the physical evidence, in particular

the three contact wounds. Because the Weathersby rule does not apply, there is a presumption that "the

unexplained killing of one person by another is presumed to be malicious, and therefore murder." Blanks,

547 So.2d at 33.

¶22. Taylor also argues that the State failed to prove the concluding requirement of Jury Instruction 9 that

the defendant had the mental capacity to "realize and appreciate the nature and quality of his acts and to

distinguish between right and wrong at the time he committed these acts . . . ." This language is a statement

of the M'Naghten Rule which is the long-standing test for insanity in Mississippi. "Simply stated, the test for

insanity is whether the defendant was unable to distinguish right from wrong at the time the act was

committed." Tyler v. State, 618 So.2d 1306, 1309 (Miss. 1993) (quoting Roundtree v. State, 568

So.2d 1173, 1181 (Miss. 1990)).

¶23. In arguing that he was delusional and could not distinguish between right and wrong, Taylor points to

the testimony of Patrolman Shane Ellis who was dispatched to the residence a few hours prior to the

shooting. Ellis testified that Taylor had fired a gun inside the home because "he thought he saw something

that he didn't see." Taylor also told his mother and his sister that he had shot at someone coming down from

the attic. There was also testimony from Thomas Smithson and Thomas Hall that Taylor may have been

delusional or paranoid. Both the prosecution and the defense rely on the testimony of the State's

psychologist, Reb McMichael who stated that Taylor was mentally disturbed but that he was not insane

under the M'Naghten test. Taylor argues there was enough doubt raised concerning Taylor's sanity that the

burden should have been shifted to the State. "The defendant is presumed sane until a reasonable doubt of

his sanity is created. When such a doubt arises, the burden is then placed upon the state to prove, beyond a

reasonable doubt, the defendant's sanity." Davis v. State, 551 So.2d 165, 173 (Miss. 1989).

¶24. However, the question of a defendant's sanity is for the jury, which "may accept or reject expert and

lay testimony." Tyler v. State, 618 So.2d at 1309. "Given the fact that there is testimony on both sides of

the issue - - a jury's verdict on the insanity issue is essentially conclusive and unreviewable." Gerlach v.

State, 466 So.2d 75, 79 (Miss. 1985). This Court has recognized that "institutional and practical

considerations mandate that in insanity defense cases, perhaps more than any other, a jury's verdict ought to

be given great respect and deference." Groseclose v. State, 440 So.2d at 301. In this case, there is not a

sufficient basis for disturbing the decision of the jury.

¶25. Taylor raises essentially the same issues concerning the conviction under Count Two. Thus, our

conclusion is the same. Taylor's first issue is without merit.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

REFUSING DEFENDANT'S JURY INSTRUCTION D-4?

¶26. Taylor next argues the trial court erred in refusing to grant Jury Instruction D-4, a circumstantial

evidence instruction which read as follows:

The court instructs the jury that if there be a fact or circumstance in this case susceptible of two

interpretations, one favorable and the other unfavorable to the accused, when the jury has considered

such fact of [sic] circumstance with all other evidence, there is a reasonable doubt as to the correct

interpretation, then you, the jury must resolve the doubt in favor of the accused, and place upon such
fact or circumstance the interpretation most favorable to the accused.

¶27. Taylor argues the instruction is appropriate because this Court has held such a circumstantial evidence

instruction "must be given unless there is some type of direct evidence such as eyewitness testimony, dying

declaration, or confession or admission of the accused." Deal v. State, 589 So.2d 1257, 1260 (Miss.

1991). The trial court, however, disagreed noting that "there's been no denial of the shooting." The State

argued there were admissions by the defendant that constituted direct evidence. Manning v. State, 735

So.2d 323, 338 (Miss. 1999); Gray v. State, 728 So.2d 36, 76 (Miss. 1998). Taylor's second issue lacks

merit in that the State's case did not rest solely on circumstantial evidence.

III. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE

ALTERNATIVE A NEW TRIAL?

¶28. Taylor argued the trial court should have granted the defendant a directed verdict or a new trial for the

following reasons:

1. The verdict was contrary to law;

2. the verdict was contrary to the evidence;

3. the verdict is strongly against the weight of the evidence;

4. the trial court erred in granting and refusing jury instructions;

5. the trial court erred in failing to grant a directed verdict in favor of the defendant at the close of the

State's case; and,

6. the trial court erred in not granting a mistrial following improper remarks by the prosecutor during

closing argument.

The focus of this issue is on the statements by the Assistant District Attorney in the closing argument. The

prosecutor stated:

Defense says if that's not insane, I don't know what is. Well, I'll tell you what was insane. Down in

Panola County when a man took his two year old baby, took a knife, cut it out and held it there

because it was possessed with demons. And he didn't run off. He didn't go get some money for a

lawyer.

The defense objected to the comments on the basis of facts not in evidence. The trial judge instructed the

prosecutor to "move on," and the prosecutor did as instructed. Taylor failed to obtain a ruling on his

objection and therefore is barred from raising the objection now. Cole v. State, 525 So.2d 365, 369

(Miss. 1987). Taylor is also procedurally barred from raising the grounds on appeal that the prosecutor's

statements concerning running off and hiring a lawyer constituted an impermissible reference to Taylor's

failure to testify. This ground was never raise in the trial court. Gayten v. State, 595 So.2d 409, 413

(Miss. 1992). Consequently, Taylor's third assignment of error is wholly without merit.CONCLUSION

¶29. The jury's decision was reasonable and based on sufficient evidence. Also, the trial court judge did not

err in refusing Taylor's requested circumstantial evidence instruction since the State's case did not rest
entirely on circumstantial evidence. Nor did the trial court judge err in denying Taylor's Motion for Judgment

Notwithstanding the Verdict or in the Alternative a New Trial. The complained of comments by the

prosecutor were dealt with properly by the trial judge, and Taylor is procedurally barred from raising the

issue on appeal. The judgment of the DeSoto County Circuit Court is affirmed.

¶30. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT

IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,

AFFIRMED. COUNT II: CONVICTION OF CAUSING THE DEATH OF AN UNBORN

QUICK CHILD AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE

MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE IN

COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I.

APPELLANT IS GIVEN CREDIT FOR 885 DAYS TIME SERVED.

PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, MILLS, WALLER, DIAZ AND

EASLEY, JJ., CONCUR.