                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 93-CT-01109-SCT
ALVIN JUDE RUSSELL
v.
STATE OF MISSISSIPPI
                          ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT:                                9/23/93
TRIAL JUDGE:                                     HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED:                       HARRISON COUNTY CIRCUIT COURT
FOR APPELLANT:                                   MICHAEL W. CROSBY
FOR APPELLEE:                                    OFFICE OF THE ATTORNEY GENERAL
                                                 BY: JEFFREY KLINGFUSS
DISTRICT ATTORNEY:                               NA
NATURE OF THE CASE:                              CRIMINAL - FELONY
DISPOSITION:                                     REVERSED AND REMANDED - 06/19/97
MOTION FOR REHEARING FILED:                      7/3/97
MANDATE ISSUED:                                  12/3/97




     EN BANC.


     PITTMAN, JUSTICE, FOR THE COURT:




                                   STATEMENT OF THE CASE

¶1. Russell was convicted of the murder of his wife and sentenced to life imprisonment. On appeal
Russell argued that he was entitled to assert the defense of insanity and irresistible impulse, and that
he should have been allowed to assert the defense of manslaughter. Russell argued that by failing to
allow him to present expert and lay testimony on the issue of insanity and failing to allow him jury
instructions on insanity and manslaughter, the trial court effectively prevented him from presenting
his theories of defense.

¶2. The Court of Appeals reversed and remanded the case for a new trial on the failure of the trial
court to grant jury instructions on the defendant's theory of defense. This Court granted the petition
for writ of certiorari filed by the State and now affirms the decision of the Court of Appeals reversing
and remanding the case for a new trial, but modifies the Court of Appeals' ruling on the evidentiary
questions.

¶3. In seeking a writ of certiorari the State argued that the decision of the Court of Appeals holds
that the testimony of the defendant alone is sufficient to require the court to give an insanity defense
instruction. The State also argued that the Court of Appeals in holding that it was error not to give a
manslaughter instruction has rendered a decision in conflict with prior decisions of this Court. After
consideration, this Court finds that both of the propositions raised by the State are without merit.

¶4. Since this case will be retried, it is appropriate that we consider whether the expert testimony and
lay testimony on the issue of Russell's insanity were wrongly excluded. Of particular concern is
whether there was any basis for the trial court's exclusion of Dr. Cox's testimony in its entirety simply
because the court found that Dr. Cox's testimony "did not support the ultimate conclusion of
insanity." The second area of concern was the Court of Appeals' reliance on Porter v . State, 492
So. 2d 970 (Miss. 1986), in finding that the court did not err in refusing to allow the lay witnesses to
testify. Porter provides that a lay witness must testify as to a defendant's sanity at the time of the
witness's observation, and that if the lay witness does not observe the defendant at the moment of the
crime, the witness may not give opinion testimony concerning the defendant's sanity at the moment.

                                  STATEMENT OF THE FACTS

¶5. At the time of the shooting, Russell was forty-eight-years old and had many physical and
emotional problems. He had been diagnosed as having a tumor on his pituitary gland which caused
him to be confused and disoriented. He was also suffering from depression. He had left his
employment with IBM after twenty-four years on early retirement as a result of the company
downsizing and his fear that he would be laid off without any income if he did not choose retirement.
A subsequent business venture with his wife failed. As a result of the strain caused by these problems,
Russell's wife, Rebecca, left him and served him with divorce papers.

¶6. On the day of the incident, Russell and his wife met at a bank to withdraw money from a joint
bank account. When Rebecca arrived Russell went to her car and started talking to her about
agreeing to split everything equally. Russell thought that she had been irrational in her demands and
influenced by her lawyer. Rebecca said that she would discuss it with her lawyer and turned to walk
toward the bank. Russell testified that he did not know or remember what happened next, except he
heard a gunshot and realized he had a gun in his hand. Russell then shot his wife again as she lay on
the ground. Russell testified that he did not understand why he shot her again.

¶7. Throughout Russell's testimony, defense counsel solicited testimony regarding Russell's state of
mind and sought to show why the verbal exchange between him and his wife would have triggered
such a reaction. The court sustained the prosecution's objections to this testimony.

¶8. The defense sought to introduce the testimony of Dr. Aris W. Cox, a board-certified forensic
psychiatrist. Dr. Cox's testimony was proffered, out of the presence of the jury. His testimony was
not offered to show that Russell was insane but "to establish the condition and mental state and the
affect of this medical condition on his emotion and reasoning ability." Defense counsel understood
that he would not be able to get into Dr. Cox's opinion on irresistible impulse based on the court's
previous ruling on that question.

¶9. On proffer of this testimony, Dr. Cox expressed the opinion that Russell had an organic mental
disease and that he suffered from an irresistible impulse which overwhelmed his reason, judgment and
conscience. On cross-examination Dr. Cox testified that Russell did not suffer from a mental disease
or defect sufficient in intensity to rise to the level of the M'Naughton standard. Dr. Cox stood by his
opinion that Russell was able to distinguish right from wrong at the time of the shooting. The trial
judge concluded that the testimony of Dr. Cox was not admissible because the doctor could not
conclude that Russell did not know the difference between right and wrong, and thereby lay the
proper predicate for an insanity defense.

¶10. Russell, through his attorney, expressed the intention to prove an insanity defense based on lay
testimony. He shot Rebecca on September 17, 1992. He testified that he had been employed by IBM,
a company known for its long standing policy of no layoffs, for twenty-four years, after which, in July
1992, he was compelled to take leave with a single lump-sum payment. With his wife, he invested a
substantial portion of it in a business that turned out to be a confidence scheme, resulting in
significant loss. It was only a few days prior to the event that his wife left him and filed for a divorce.
Although he testified that he was not aware of shooting her until after he fired, he was severely
restricted by the court in testifying as to his medical condition, medication that he was taking, and his
state of mind. Russell sought to introduce testimony from his brother, Wayne Russell, and sister,
Carole Haynes, as to his mental state. Carole Haynes testified in proffer as to her observations of and
conversations and meetings with her brother and gave her opinion that he did not know the difference
between right and wrong at the time of the shooting. Wayne Russell proffered similar testimony, but
had had less frequent contact with his brother, the defendant. Carole Haynes said that she normally
spoke with Russell at least twice a month and that in the two months prior to the shooting she had
spoken with him four or five times per week. She spoke with him the day before the shooting. She
testified to depression, loss of short term memory as to common events and disorientation as to time
and place. She described him as being in a whirlwind. In her testimony she have specific examples to
support her observations, all from a period of three or four weeks prior to the shooting. Neither she
nor Wayne saw or had contact with Russell on the day of the shooting. The judge did not allow this
testimony because these lay witnesses could not testify as to Russell's state of mind at the time of the
shooting. In this way, the trial court prevented Russell from interposing any form of an insanity
defense. The court also denied defense instructions dealing with manslaughter, deliberate design, and
insanity.

                                              ANALYSIS

¶11. In his appeal Russell presented two issues, which he stated as follows:

     I. Was the Defendant entitled to assert the defense of insanity and irresistible impulse?

     II. Should Alvin Russell have been allowed to assert the defense of manslaughter?

                                            Insanity Defense

¶12. Mississippi courts apply the M'Naughton test in determining sanity. Westbrook v. State, 658 So.
2d 847, 859 (Miss. 1995); Tyler v. State, 618 So. 2d 1306, 1309 (Miss. 1993); Roundtree v. State,
568 So. 2d 1173, 1181 (Miss. 1990); Davis v. State, 551 So. 2d 165, 173 (Miss. 1989). Simply put,
"the test for insanity is whether the defendant was unable to distinguish right from wrong at the time
the act was committed." Roundtree, 568 So. 2d at 1181. The determination as to a defendant's sanity
is within the province of the jury, which may accept or reject expert and lay testimony. Tyler, 618
So. 2d at 1309; Roundtree, 568 So. 2d at 1181.

¶13. In Westbrook v. State, 658 So. 2d at 859, this Court reaffirmed that the defense of irresistible
impulse is not available in Mississippi. The Court quoted the following passage from Edmond v.
State, 312 So. 2d 702, 704 (Miss. 1975):

     This Court has recently (as it has done many times in the past), rejected the argument that one
     may escape responsibility for criminal acts done under some so-called uncontrollable urge or
     impulse. Admittedly, the M'Naughton test of criminal responsibility may not be a perfect means
     to test sanity of one charge with [sic] crime, but no better solution has been offered. Thus the
     test in this state remains the ability of the accused to realize and appreciate the nature and
     quality of his deeds when committed and the ability to distinguish between right and wrong.

Id. (citations omitted; emphasis added in Westbrook). While this is not to say that an uncontrollable
or irresistible impulse will not factor into the determination of legal insanity, such impulse must spring
from a mental disease existing to such a high degree as to overwhelm the person and conscience, i.e.,
to raise it to the M'Naughton standard. Billiot v. State, 454 So. 2d 445, 461 (Miss. 1984); Laney v.
State, 421 So. 2d 1216, 1218 (Miss. 1982).

¶14. In excluding the proffered testimony of Carole Haynes and Wayne Russell, the judge relied on
Porter v. State, 492 So.2d 970 (Miss. 1986), saying:

     Now the Court has listened to the lay testimony, and the following Rule 7.01 [MRE 701],
     following Porter versus State at 492 So. 2d 970, 1986 case, and reading Ms. Stanton's work on
     Mississippi evidence at page 165, I'm not sure about that, I think its page 165. It's under Rule
     7.01. It says, "that in order for an opinion to be admissible that facts which the witness
     observed", speaking about 7.01 which deals with lay witnesses, "in order for an opinion to be
     admissible the facts which the witness observed must be of a character capable of forming a
     reasonable basis for an opinion of insanity."

     Now, I've allowed and I've asked and allowed the defendant to make a proffer of the lay
     witnesses that he wishes to call, certainly I can't compel him to put the defendant on the stand at
     this time and I'm not asking him to. But in reviewing the rules it says in Porter, "A lay witness
     may express an opinion that another is insane only when a sufficient predicate has been laid to
     establish two things; first, that the witness has had a reasonably sufficient opportunity to
     observe the subject; and (2)", and not or, "and secondly, has noted behavior on his part
     reasonably indicative of an unsound mind and upon which the witness bases an opinion that the
     subject was, at the time of his observation by the witness of unsound mind." It goes further and
     says, "that the witness may not make a prognosis or project into some future time an opinion as
     to the mental condition of the subject, not may be extend it to a date subsequent to the
     observation. The witness is limited in expressing an opinion to the time when he had the subject
     under observation." And at page 975 in the Porter opinion, not citing grossly close [sic], it says,
     "if a lay witness does not observe a defendant at the moment of the crime the witness may not
     give opinion testimony concerning the defendant's sanity at that moment."

     Now this Court has a difficult decision to make, and I can only predicate it on the best reading
     that I can make of the law that's been placed before me and the limited research that I have been
     able to do in relying upon what I think the criminal law should be based upon, and this is, upon
     common law, based upon the common sense approach to this matter.

     In this case we have no medical proof to support it. In this case we have two lay witnesses who
     have testified, and from the record of their testimony I find that there is nothing which was
     testified to by either Mrs. Haynes or Mr. Russell concerning the defendant's behavior which
     reasonably indicated that at the time that they observed him being depressed, agitated, stressful,
     lack of concentration, fluidness of thought, whatever that observation is and other factors in the
     record, has nothing that would reasonably indicate that he, the defendant, was of an unsound
     mind at the time that they observed him.

     And since they cannot under the law testify as to his sanity on the date in question, it is the
     opinion of the Court that their testimony, with this finding by the Court, that their testimony
     would not be allowed before the jury.

     And furthermore, with the absence at this time of any lay opinion concerning sanity then
     likewise the medical history and the physical history and the mental history, if any that Dr. Cox
     would have testified about, as well as totally the irresistible impulse theory, will not be
     permitted to go before the jury at this time.

¶15. We cannot agree that the testimony of the lay witnesses, particularly that of Carole Haynes,
contains nothing which would reasonably indicate that at the time they observed him, Russell was of
unsound mind. The trial judge relies in part on the fact that there was no medical proof of an unsound
mind; that of course, was a consequence of his exclusion of Dr. Cox' testimony.

¶16. Porter does not hold that a lay witness's testimony must be such that the witness has formed an
opinion as to the ultimate insanity of the defendant at the time of the criminal act, nor that the
testimony is to be excluded if it is insufficient to support an opinion by the witness of his sanity at the
time of the criminal act. The admissibility of the testimony is not to be confused with the separate
question of whether the witness is to be allowed to state an opinion as to the defendant's mental
condition at the time of the observation. Porter declares:

     When the insanity of defense is tendered, both expert testimony and lay testimony are
     admissible and useful. Groseclose v. State, 440 So. 2d 297, 301 (Miss. 1983). When lay opinion
     testimony is elicited,

     [A] lay witness may express an opinion that another is insane only when a sufficient predicate
     has been laid to establish that: (1) the witness has had a reasonably sufficient opportunity to
     observe the subject and (2) has noted behavior on his part reasonably indicative of an unsound
     mind and upon which he bases an opinion that the subject was, at the time of the observation by
     the witness, of unsound mind. The witness may not make a prognosis or project into some
     future time an opinion as to the mental condition of the subject nor may he extend it to a date
     subsequent to the observation. He is limited, in expressing an opinion, to the time when he had
     the subject under his observation.

     Alexander v . State, 358 So. 2d 379, 384 (Miss. 1978); see also Johnson v. State, 475 So.2d
     1136, 1146 (Miss. 1985).

     Summarily, a lay witness must testify as to a defendant's sanity at the time of the witness's
     observation. From that testimony, and any expert testimony elicited, the fact finder must
     determine whether defendant was sane at the moment the crime was perpetrated. If a lay
     witness does not observe a defendant at the moment of the crime, the witness may not give
     opinion testimony concerning the defendant's sanity at that moment.

Porter, at 95 (emphasis added); in Groseclose, we also recognized that prior behavior and history as
reported by lay witnesses is important and relevant.

     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, [245 So. 2 583
     (Miss. 1971)]; Lisa v. State, [362 So. 2d 198 (Miss. 1978)]. 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.

Groseclose at 301. See also Gambrell v. State, 238 Miss. 892, 120 So.2d 758 (1960), in which the
Court reviewed lay observations of the defendant's behavior over many months in reversing the
conviction.

¶17. We are not saying that a witness can testify as to the mental prognosis of a defendant or an
accused but that a witness can testify to the witness's observations and interpretation of those
observations of a defendant prior to the incident of the specific crime. Certainly a family member who
talked to the defendant four or five times a week and on the day prior to the incident sub judice may
testify regarding her observations of the defendant. We do not intend to expand the law as to
irresistible impulse or uncontrollable impulse, nor do we recognize them as a defense in this State.
However, a witness as to the mental condition of the defendant Russell is not limited to the specific
moment of the crime, nor is that witness required to be a witness of the criminal act.

¶18. Thus, while the trial court correctly ruled that the lay witnesses could not testify as to Russell's
mental condition at the time of the shooting, their testimony should have been allowed as to their
reasonably proximate observations of the defendant, and, if those observations were sufficient,
allowed to express opinions as to this mental condition at the time of those observations.

¶19. Russell's expert, Dr. Cox, was not of the opinion that Russell was insane under the M'Naughton
standards. However, he examined Russell on three different days, reviewed his medical records from
Oschner Foundation Hospital, including his x-rays and MRI scans, and talked to his treating doctor.
He further consulted specialists in pituitary disease. He concluded that Russell had a lesion or tumor
in his pituitary stalk, an area of the brain which has much to do with regulating behavior, and that
such a lesion could cause uncontrollable rage. He expressed the opinion that on the day of the
shooting, Russell had a rage attack, largely predisposed by his disease, that was so profound as to
overwhelm his reason and judgment. He further said that if Russell had, as the latter tried to give
testimony on, suspended taking prescribed medication including replacement hormones, such
discontinuance could have been a significant factor, making him confused and impairing his judgment.
The trial court excluded this proffer, finding that his testimony did not support an insanity defense.
Where the witness has testimony or properly predicated opinion which is relevant when viewed in the
light of other evidence, it is not to be excluded solely on the basis that his ultimate opinion is not
favorable to the defense. As enunciated in Groseclose, it is for the trier of facts, the jury -- not the
witness -- finally to determine whether the evidence rises to the standard.

                                       Manslaughter Defense

¶20. Under the heading "II. REFUSAL OF THE MANSLAUGHTER INSTRUCTION," the Court
of Appeals stated the following:

     The defendant also claims that the court erred in refusing a manslaughter instruction.
     Specifically, the defendant claims in his brief that the lower court erred in refusing all defense
     instructions as well as all defenses. The lower court denied defense's request for instructions
     dealing with manslaughter, deliberate design, and insanity. The defendant testified in essence
     that he did not know what he was doing at the time of the shooting and that he had no intention
     of hurting his wife when he met her at the bank. The court ruled that all of the defendant's
     testimony of the incidences which led up to the shooting was not admissible. We disagree.

     The defendant's testimony should have been admitted on the issue of insanity and on the issue of
     manslaughter. The defendant sought to testify that he was disoriented and confused and that he
     was under the care of a doctor for a pituitary tumor. He also testified that he had no intention of
     hurting his wife when he went to the bank to meet her. The defendant further claimed that he
     did not know what he was doing at the time of the shooting. In light of this testimony, the jury
     could have found the defendant guilty of manslaughter or found the defendant insane. The
     testimony should have been admitted and the proper jury instructions should have been given.

Slip opinion at 7.

¶21. The Court of Appeals quoted from Giles v. State, 650 So. 2d 846, 849 (Miss. 1995), where this
Court stated that "[e]ven though based on meager evidence and highly unlikely, a defendant is
entitled to have every legal defense he asserts to be submitted as a factual issue for determination by
the jury under proper instruction."

¶22. Much of the State's argument that the Court of Appeals reached a conclusion inconsistent with
existing Mississippi law is based on a misreading of the opinion. The State contends that the Court of
Appeals coupled the insanity issue with the manslaughter issue and held that evidence of insanity
reduces murder to manslaughter. The language of the opinion shows that these are spoken of in the
alternative: "In light of this testimony, the jury could have found the defendant guilty of manslaughter
or found the defendant insane."
¶23. Some of the confusion is generated by the Court of Appeals' choice of discussing and resolving
issues unrelated to the question of the manslaughter instruction under this heading and issue. The
second issue, as discussed by the Court of Appeals, could more properly be labeled as whether the
defendant is entitled to have the jury instructed on his theories of defense, not just manslaughter. As
Russell notes in his response, the State is not really arguing a conflict with prior case law; the State is
arguing whether the evidence rises to the threshold level required for a manslaughter instruction.
Under Giles all that is required is a "meager, highly unlikely" showing, and the Court of Appeals
concluded that the requirements had been met.

¶24. The State, relying on Taylor v. State, 452 So. 2d 441 (Miss. 1984), argues that the defenses of
insanity and manslaughter are distinct defenses and that an imperfect insanity defense does not
warrant a manslaughter instruction. Though there is nothing wrong with that statement in the
abstract, it does not control in this case. In Taylor, holding that manslaughter was not to be decided
upon expert testimony, the Court distinguished the case then before it -- in which an insanity defense
was not offered -- from situations, as now before us, wherein both manslaughter and insanity
defenses were presented. The Court here said:

     In Collins v. State, [360 So. 2d 333 (Miss. 1978)] expert psychiatric testimony was admitted
     into evidence and the defendant was convicted of manslaughter and not murder. But that case is
     not authority for the admission of expert opinion evidence where the defense of insanity is not
     raised. In Collins both the defense of insanity and the alternative defense of manslaughter were
     raised at trial. Therefore, the expert opinion testimony was clearly admissible. Appellant here
     did not raise the complete defense of insanity. Therein lies the crucial difference between the
     two cases. Where insanity is not the defense, the determination of the ultimate fact of murder or
     manslaughter is left to the jury and is not subject to expert opinion.

Taylor at 449 (citations omitted).

                                            CONCLUSION

¶25. Russell came before the trial court with the two defenses of manslaughter and insanity. As the
trial progressed, he was severely restricted in his own testimony bearing on these defenses and
stripped of all lay and expert evidence of his health, mental condition and state of mind. Then he was
denied all instructions on both questions. The decision of the Court of Appeals is faithful to this
Court's precedent on the two underlying principles: that a defendant should be allowed to present his
theory of defense and that the jury should be given the option of a lesser-included offense where
there is any evidentiary basis. This Court in Graham v. State, 582 So. 2d 1014, 1017-18 (Miss.
1991), stated that "a lesser included offense instruction should be granted unless the trial judge -- and
ultimately this Court -- can say, taking the evidence in the light most favorable to the accused, and
considering all reasonable favorable inferences which may be drawn in favor of the accused from the
evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and
conversely not guilty of at least one essential element of the principal charge). See also Dedeaux v.
State, 630 So. 2d 30, 33 (Miss. 1993); Gates v. State, 484 So. 2d 1002, 1004 (Miss. 1986). Here the
Court of Appeals held that the case should be remanded to allow Russell to testify and to have the
jury properly instructed on the law of the case. On remand the admissibility of evidence, whether
factual or opinion, should be weighted in the light of the principals stated herein; although lay
witnesses may not give opinions as to the mental state of the defendant at the time of the incident
charged, they are

to be allowed to give relevant, material and probative testimony as to behavior which will bear on the
defenses, and, if their observations are sufficient, opinion as to his mental state at the time of the
observations. Likewise, although an expert presented may not testify for the purpose of establishing a
manslaughter claim, his observations fairly relating to defendant's medical history and condition or to
sanity may be submitted to the jury, even if his conclusion is not supportive, if that issue is fairly
raised and those observation are helpful to the jury in determining the ultimate fact of sanity and
otherwise admissible.

¶26. The decision of the Court of Appeals is affirmed. This case reversed and remanded for a new
trial.

¶27. REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.

LEE, C.J., SULLIVAN P.J., BANKS, McRAE AND MILLS, JJ., CONCUR. PRATHER, P.J.,
CONCURS IN RESULT ONLY. SMITH, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY ROBERTS, J.


     SMITH, JUSTICE, DISSENTING:




¶28. The majority affirms the Court of Appeals' reversal of Alvin J. Russell's conviction for killing his
wife, but proclaim that since the case is to be retried by another jury, the opinion is modified to
address an improper analysis by that court of evidentiary questions. I disagree with the majority view
and therefore dissent.

¶29. First, neither the Petition for Certiorari filed by the State nor the response of Russell raised the
admissibility of expert and/or lay testimony as issues. Accordingly, this Court should not address
these issues unless we affirmatively do so applying M.R.A.P. 2. Harris v. State, 92-CT-00297-SCT,
slip op. (Miss. February 6, 1997).

¶30. Second, I find no fault with the trial judge's denial of Dr. Aris W. Cox's testimony offered for the
specific purpose of establishing an irresistible impulse during the killing, an attempt to establish
Russell's insanity at the time of the killing. An examination of this record, specifically Russell's proffer
of Dr. Cox's testimony, is indeed revealing concerning exactly what Russell was attempting to prove
regarding his mental state at the time of the killing of his wife. It is clear from the record that Dr.
Cox's testimony was not offered to establish that Russell was insane. Dr. Cox admitted on cross-
examination that Russell knew right from wrong and that Russell did not suffer from a mental
deficiency sufficient to rise to the level of this Court's M'Naghten standard. This Court has applied
the M'Naghten test in determining sanity. Westbrook v. State, 658 So. 2d 847, 850 (Miss. 1995).
"The test for insanity is whether the defendant was unable to distinguish right from wrong at the time
the act was committed." Roundtree v. State, 568 So. 2d 1173, 1181 (Miss. 1990). The majority
readily agrees that these are facts established by this record.

¶31. If not offered to establish an insanity defense, what then was Dr. Cox's testimony calculated to
establish? Dr. Cox's testimony could not be allowed to establish that Russell suffered from an
irresistible impulse during the killing of his wife, because this Court has held that the defense of
irresistible impulse is not available in Mississippi. Westbrook v. State, 658 So. 2d at 850, quoting
Edmond v. State, 312 So. 2d 702, 704 (Miss. 1975). However, the defense of irresistible impulse,
although normally not available in Mississippi, is allowed if it rises to the M'Naghten standard of
insanity. Billiot v. State, 454 So. 2d 445, 461 (Miss. 1984). The majority correctly recognizes that
such defense was not available to Russell. However, the majority, although correctly stating the facts,
nevertheless appears to ignore the specific purpose of Cox's testimony as stated in Dr. Cox's proffer.
Again, an examination of the record is helpful in discerning the purpose of Dr. Cox's testimony. The
proffer clearly states that Dr. Cox's expressed opinion was that Russell had an organic mental disease
and that he suffered from an " irresistible impulse" which overwhelmed his reason, judgment and
conscience. This was nothing more than an attempt to establish an insanity defense without laying a
proper predicate. The trial judge had previously ruled that Dr. Cox would not be allowed to testify
about any irresistible impulse which caused Russell to kill his wife. Defense counsel clearly
understood the trial court's ruling. Dr. Cox testified that Russell knew right from wrong. Thus, Dr.
Cox's testimony concerning Russell's irresistible impulse did not rise to the level of the M'Naghten
standard of insanity. The trial court's ruling was absolutely correct as revealed by the facts established
within this record.

¶32. The majority also faults the trial court for denying the lay testimony of Russell's brother Wayne
Russell and his sister, Carole Haynes, as to his mental state. The majority is correct in holding that
both siblings should be allowed to express their lay opinion as to Russell's mental state at various
recent times when they had personally observed Russell's conduct, including incidents occurring prior
to the killing. However, "[A lay witness is] limited in expressing an opinion, to the time when he had
the subject under his observation." Porter v. State, 492 So. 2d 970, 974-75 (Miss. 1986), citing
Groseclose v. State, 440 So. 2d 297, 301 (Miss. 1983); See also Alexander v. State, 358 So. 2d 379,
384 (Miss. 1978) and Johnson v. State, 475 So. 2d 1136, 1146 (Miss. 1985). Additionally, "The
witness may not make a prognosis or project into some future time an opinion as to the mental
condition of the subject nor may he extend it to a date subsequent to the observation." Porter at 975.

¶33. The problem which the majority fails to note is that both siblings were attempting to give their
lay opinions concerning Russell's sanity on the day of the killing when their proffered testimony in
this record clearly indicates that on that date neither of the lay witnesses saw Russell.. When asked
upon what basis of behavior he drew his opinion on the date of the murder, Wayne Russell stated,
"Well I wasn't there." Carole Haynes testified that her brother may have lacked capacity "at varying
times." She further testified that Russell was "on the normal side," "regaining sanity" prior to the day
of the murder. When questioned specifically what events she had observed that was the basis of her
opinion Haynes stated, "I don't know." In order to establish a basis for her opinion, Haynes was
required to "first detail relevant facts known to [her], based on events which [she had] observed.
Conner v. State, 632 So. 2d 1239, 1266 (Miss. 1993). Additionally, Haynes was also subject to " the
familiar "requirement of first-hand knowledge or observation." Conner at 1267.
¶34. Finally, the majority faults the trial judge for failure to give a manslaughter instruction. The
evidence must warrant an instruction on the lesser-included offense before it can be granted. Graham
v. State, 582 So. 2d 1014, 1017 (Miss. 1991), citingSteven v. State, 458 So. 2d 726, 731 (Miss.
1984). Here, there was no evidence tendered which warranted the giving of a manslaughter
instruction. Additionally, this Court has stated, "In manslaughter the malice or intent to kill must arise
from a present provocation and this provocation must stem from the deceased." Gaddis v. State, 207
Miss. 508, 515; 42 So. 2d 724(1949).

¶35. Russell's shooting of his wife occurred upon his meeting her at the bank. He exited his vehicle
and approached her with the gun in his hand. Russell's excuse was that his wife was being ambivalent
and told him that she would take his suggestions under consideration and "discuss it with my lawyer."
Whereupon, Russell proceeded to shoot her. While she was lying on the ground, Russell shot her a
again, this time in the head. The second shot was the fatal shot which caused her death as established
by the State's expert witness. Russell tossed the gun into his truck and waited for police to arrive,
whereupon he confessed, "I just killed my wife." Words alone are not sufficient provocation.
Johnson v. State, 416 So. 2d 383, 387 (Miss. 1982); Gates v. State, 484 So. 2d 1002, 1005 (Miss.
1986); Stevens v. State, 458 So. 2d 726, 731, (Miss. 1984). Merely stating that she would talk to her
lawyer could never qualify as sufficient provocation to justify granting Russell a manslaughter
instruction. Provocation? Hardly. Without a scintilla of evidence in this record to support the
granting of a manslaughter instruction, the trial court was correct in denying one.

¶36. I respectfully dissent.

ROBERTS, J., JOINS THIS OPINION.
