Purvis Jones v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00550-COA
PURVIS JONES
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
02/15/2001
HON. L. BRELAND HILBURN
HINDS COUNTY CIRCUIT COURT
ROSS R. BARNETT JR.
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
DISTRICT ATTORNEY:
ELEANOR JOHNSON PETERSON
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
02/15/2001: MANSLAUGHTER: SENTENCED TO
TWENTY YEARS WITH MDOC, THREE YEARS
SUSPENDED AND SEVENTEEN TO SERVE.
DISPOSITION:
AFFIRMED - 07/23/2002
MOTION FOR REHEARING FILED: 8/6/2002; denied 9/24/2002
CERTIORARI FILED:
MANDATE ISSUED:
10/15/2002
BEFORE McMILLIN, C.J., THOMAS, MYERS, AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1. Purvis Jones was convicted in the Circuit Court of Hinds County of manslaughter and sentenced to
serve a term of twenty years with three years suspended. Aggrieved, he asserts the following issues:
I. THE TRIAL COURT ERRED IN REFUSING TO DISCHARGE JONES UNDER THE
DOCTRINE AFFIRMED IN WEATHERSBY V. STATE.
II. THE TRIAL COURT ERRED IN DENYING JONES'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR FOR A NEW TRIAL.
III. THE TRIAL COURT ERRED IN REFUSING AN INSTRUCTION ON EXCUSABLE
HOMICIDE.
Finding no error, we affirm.
FACTS
¶2. In the very early hours of November 22, 1998, appellant Purvis Jones and his brother Johnny were at
Mills Restaurant and Lounge on Billy Bell Road in rural Hinds County. Shortly after they arrived, Columbus
McDonald, Jr. entered the lounge with Jones's sister, Pam Wilson Williams, Ruby Smith, and Emma Parks.
Problems first began when another man asked Pam to dance. McDonald, who apparently was living with
Pam at the time, grabbed the man on his shoulder and said some words to him. While in the men's room,
Purvis Jones overheard the man who had asked Pam to dance talk about "wasting" McDonald. McDonald
also became angry with Pam and poured a drink on her.
¶3. There was testimony at trial that McDonald went outside to Pam's car and got her .38 caliber handgun.
Purvis testified that he sensed trouble was coming. According to Purvis, McDonald had a propensity for
violence and had beaten Pam only two weeks prior and had also fired a gun at her on a public street. Purvis
therefore decided to urge the others to leave. When they would not leave, Purvis stepped outside the club
and called for his stepfather to come pick him up. Purvis also gathered his belongings, including a pistol,
from his brother Johnny's car.
¶4. Shortly after Purvis went outside, McDonald came outside. According to Purvis, McDonald bumped
into him on purpose. Purvis testified that he felt McDonald's gun when he bumped into him, although he told
investigators later that night that he did not know if McDonald was armed. Purvis told McDonald he
wanted no trouble, and McDonald left in Pam's car. A few minutes later, Purvis's brother, Johnny, came
outside to try and get Purvis to stay with him and the others. Johnny was apparently very intoxicated. They
began to argue about whether Purvis should stay or go, and their argument led to a "tussle" which became a
struggle on the ground.
¶5. At some point during this struggle, McDonald arrived and pulled Purvis off of his brother. McDonald
and Purvis began to struggle. Purvis reached for his gun, brought it up, and according to his testimony, the
gun accidentally discharged. The bullet struck McDonald and he fell to the ground. Purvis testified that he
was confused by the situation and did not realize initially that he had fired the shot. An ambulance was
called, and there was testimony that several people tried to render aid to McDonald.
¶6. Purvis's stepfather arrived and was told what had occurred. Although it was not initially told to
investigators, there was testimony at trial that Pam tossed her .38 caliber gun, which McDonald had
allegedly had on his person into the back of the stepfather's truck. She surrendered the gun to the police the
following day in a plastic bag. By the time the police arrived on the scene, McDonald was dead. Purvis
admitted shooting McDonald but claimed that it was unintentional. Investigators found no other weapons
but the one that Purvis owned. Pam asked the investigators to look through her car for her .38 caliber gun.
They did so and found some cartridges, but the search did not produce a gun.
¶7. At trial, a pathologist testified that McDonald had been shot at a slight downward trajectory from a
distance greater than eighteen inches. He testified that this was consistent with both McDonald and the
person who fired the shot being in a standing position with a distance greater than eighteen inches between
them. A forensic scientist also testified at trial that gunshot residue was found on Purvis's hands. Another
forensic scientist testified that the fatal shot had been fired by Purvis's gun.
¶8. Purvis testified in his own defense. During his testimony, he contradicted some of the statements he gave
to the investigators at the scene. He testified that he felt the gun and knew that McDonald was armed, and
that McDonald had begun choking him when he was struggling with his brother. Purvis also testified that he
saw McDonald's gun just before he killed McDonald. He also testified that he was getting up off the ground
when he fired up at McDonald. He also testified that approximately forty-five minutes had passed before
medical assistance for McDonald arrived. On cross-examination, Purvis stated that he did tell the
investigators about the gun, although it was not in the statement he signed. He also testified that he did not
tell the investigator about the other facts because the investigator did not ask.
¶9. Pam Wilson Williams also testified at trial. She testified that McDonald was a violent man, even though
she had lived with him for most of the time they were together. She testified that she saw McDonald point a
gun at Purvis, and that it was after this that Purvis went for his gun. Although she did not take McDonald to
the hospital, she did state that she put the gun that he had in the back of Purvis's stepfather's truck because
someone had said to get rid of any guns. She testified that she did not tell police about this because she was
scared. She admitted to asking one of the investigating officers to search her car for her gun.
¶10. The day following the shooting, she called the investigator and told him that she had the gun which
McDonald had allegedly pointed at Purvis. When she was taken in for a statement regarding the gun, she
succumbed to a fit of nausea and was unable to make a statement. She testified that she never told
investigators that McDonald was threatening her brother with a gun, because she was told that she did not
have to talk and decided to wait until trial to do so.
¶11. Several other witnesses also testified for the defense. Ruby Smith testified that she had seen McDonald
in the lounge with a gun, but unlike Pam who saw McDonald put the gun in his coat or jacket, Smith
testified that the gun was in his pants. Johnny Jones testified that he did not see McDonald with a gun, but
he admitted that he was under the influence of alcohol at the time. After McDonald interrupted his struggle
with his brother, Johnny removed himself from the immediate area and did not see what happened, although
he heard the gunshot. Johnny admitted that he "might" have handled his gun that night, but denied firing any
weapon. He apparently got rid of his weapon when he heard the advice to get rid of any guns.
¶12. The State brought the chief investigator back to testify. Again, he testified that Purvis did not tell him
that he had seen a gun on McDonald at the time of the shooting. The investigator testified that Pam told him
at the scene that she had known McDonald was going to get her gun out of the car when he left the club.
However, she did not tell him that McDonald was armed at the time Purvis shot him. When Pam gave the
investigator her .38 caliber gun the following day, she told him that she was upset when McDonald was shot
and that she took the gun out of his pocket after he was shot. She refused to give a written statement as did
Johnny Johnson who was present when the investigator was given the gun.
ANALYSIS
I. DID THE TRIAL COURT ERR IN REFUSING TO DISCHARGE JONES UNDER
THE DOCTRINE AFFIRMED IN WEATHERSBY V. STATE?
¶13. Purvis Jones asserts that he was entitled to an acquittal due to the Weathersby rule. The Weathersby
rule is 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). According to Purvis, although his
witnesses described the events in slightly different terms, their combined stories show that he was not the
aggressor and was not at fault. Therefore, he asserts that his version of the facts should be accepted and
that he should be acquitted.
¶14. In Taylor v. State, 795 So. 2d 512 (Miss. 2001), the Mississippi Supreme Court held that the
Weathersby rule did not apply if the accused, following the slaying, gave conflicting versions of how the
killing took place. Taylor, 795 So. 2d at 517 (¶20) (citing Blanks v. State, 547 So. 2d 29, 32 (Miss.
1989)). This is similar to the situation here. Purvis's testimony about McDonald having a gun contradicted
his statement to investigators the night of the shooting. Purvis's sister, Pam Wilson Williams, also changed
her story at trial.
¶15. The State provided evidence that contradicted the defense account, including a pathologist who
testified that McDonald could not have been shot on the ground due to the trajectory of the bullet that killed
McDonald. This contradiction is enough to make Purvis's guilt an issue that was proper for the jury to
consider. Turner v. State, 796 So. 2d 998, 1002 (¶14) (Miss. 2001). In Turner, a pathologist provided
testimony "regarding the lack of gunpowder residue on the deceased and the trajectory of the shotgun blast
which materially contradicted Turner's version of the shooting." Id. The court held that this was enough for
the jury to consider the matter and to overcome the Weathersby rule. Id.
¶16. Although the State did not have an eyewitness, the above reasons are enough to deny an acquittal
based on the Weathersby rule. This issue is without merit.
II. DID THE TRIAL COURT ERR IN DENYING JONES'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR FOR A NEW TRIAL?
¶17. Purvis Jones argues that the trial court erred in denying his motion for judgment notwithstanding the
verdict or for a new trial. Purvis argues that even without the Weathersby rule, a reasonable juror could not
have concluded that he intentionally shot McDonald and therefore the jury in his case came to the wrong
conclusion. Purvis never denied shooting McDonald. He told investigators initially that he did not intend to
fire and that the shooting was an accident. At trial, he claimed that McDonald was exhibiting a weapon and
that he thought that McDonald might shoot him.
¶18. In Ford v. State, 753 So. 2d 489, 490 (¶8) (Miss. Ct. App. 1999), we held that:
[I]n determining whether a jury verdict is against the overwhelming weight of the evidence, this Court
must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury
verdict only when convinced that the circuit court has abused its discretion in failing to grant a new
trial or if the final result will result in an unconscionable injustice.
(citing Danner v. State, 748 So. 2d 844, 846 (¶7) (Miss. Ct. App. 1999)). See also Turner v. State,
726 So. 2d 117, 125 (¶29) (Miss. 1998); Herring v. State, 691 So. 2d 948, 957 (Miss. 1997);
Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). "Any less stringent rule would denigrate the
constitutional power and responsibility of the jury in our criminal justice system." Hughes v. State, 724 So.
2d 893, 896 (¶14) (Miss. 1998). "In determining whether a jury verdict is against the overwhelming weight
of the evidence, the court accepts as true the evidence favorable to the State." Wetz v. State, 503 So. 2d
803, 812 (Miss. 1987). See also McClain v. State, 625 So. 2d 774, 781 (Miss. 1993); Van Buren v.
State, 498 So. 2d 1224, 1229 (Miss. 1986). It has also been established that "the jury is the judge of the
weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each
witness." Meshell v. State, 506 So. 2d 989, 991 (Miss. 1987). See also Hilliard v. State, 749 So. 2d
1015, 1017 (¶9) (Miss. 1999); Lewis v. State, 580 So. 2d 1279, 1288 (Miss. 1991); Gandy v. State,
373 So. 2d 1042, 1045 (Miss. 1979).
¶19. In the case at hand, evidence was presented that Purvis had seen McDonald pour a drink on his sister
inside the lounge. McDonald also intervened in a fight between Purvis and his brother Johnny. In some
accounts, McDonald did this by choking Purvis. Purvis was able to free himself from McDonald's grasp,
and upon retrieving a loaded pistol from his trousers, he shot McDonald. "Heat of passion" manslaughter is
defined as the following:
A state of violent and uncontrollable rage engendered by a blow or certain other provocation given,
which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger
suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of
one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred,
furious resentment or terror.
Simmons v. State, 805 So. 2d 452, 473 (¶31) (Miss. 2001); Tait v. State, 669 So. 2d 85, 89 (Miss.
1996) (quoting Buchanan v. State, 567 So. 2d 194, 197 Miss. 1990)). This state of mind can result from
a fight. Green v. State, 631 So. 2d 167, 174 (Miss. 1994).
¶20. The question of whether Purvis killed McDonald by accident as he first told investigators, in selfdefense as he testified at trial, or out of anger or "heat of passion" is a question for the jury. Green, 631 So.
2d at 174. The court did not err in refusing to grant Purvis's motions for a judgment notwithstanding the
verdict or for a new trial. This issue is without merit.
III. DID THE TRIAL COURT ERR IN REFUSING AN INSTRUCTION ON
EXCUSABLE HOMICIDE?
¶21. Purvis asserts that the court erred in denying his request for a jury instruction which set out "accident
or misfortune" rather than one which combined "accident and misfortune" with self-defense. The jury
instruction that was accepted by the court below was based on the testimony given at trial. During his
testimony, Purvis stated that he saw that McDonald was armed and pulled his gun out. It then happened to
go off. The instruction accepted by the court therefore combined the two elements and was more closely
based on the testimony than either instruction submitted by Purvis. In determining whether reversible error
lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole.
Fielder v. Magnolia Beverage Co., 757 So. 2d 925, 929 (¶10) (Miss. 1999). When so read, if the
instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id.
¶22. The instruction accepted by the court did adequately charge the jury and was an accurate assessment
of the law. It afforded Purvis the benefit of a defense based on "accident and misfortune" and most
accurately coincided with the testimony given at trial. There was no need to grant the other instructions. This
issue is without merit.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION
OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS SUSPENDED IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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