Jerry Vince v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01376-COA
JERRY VINCE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
4/11/2000
HON. MIKE SMITH
WALTHALL COUNTY CIRCUIT COURT
GLENN LOUIS WHITE
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
JAMES DANIEL SMITH
CRIMINAL - FELONY
GUILTY OF RECEIVING STOLEN PROPERTY.
SENTENCED TO 5 YEARS IN THE CUSTODY
OF THE MDOC.
AFFIRMED, REVERSED, RENDERED AND
REMANDED - 04/29/2003
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
Jerry Vince was convicted of receiving stolen property by a Walthall County Circuit Court jury and
was sentenced to the maximum allowable term of five years. Based on a finding that Vince had two prior
felony convictions, the trial court ordered that the sentence be served without eligibility for probation or
parole. Vince has appealed his conviction and sentence to this Court and asserts the following errors: (a)
the trial court erred in determining that Vince’s prior conviction for interstate transportation of a stolen
vehicle was admissible for consideration by the jury as a part of the prosecution’s case; (b) the court erred
in refusing his requested circumstantial evidence instruction; (c) Vince received ineffective assistance of
counsel based on defense counsel’s failure to raise a hearsay objection to certain testimony; (d) the
evidence establishing his guilt was insufficient as a matter of law to support the conviction, or, alternatively
the guilty verdict was against the weight of the evidence; and (e) his sentence as a habitual offender was
in error because of the prosecution’s failure to properly prove the existence of the required prior
convictions. We conclude that Vince’s conviction ought to be affirmed but that the judgment of sentence
must be vacated and this cause remanded for resentencing in accordance with the terms of this opinion.
I.
Facts
¶2.
A law enforcement officer investigating the suspected theft of a skidder and trailer owned by Harold
Puderer was able to locate the missing items hidden in a clearing on wooded property belonging to the
appellant, Jerry Vince. The property was removed by Puderer with permission of the investigating officer
but without Vince's knowledge. This resulted in Vince reporting the equipment as being stolen from him.
In the course of the investigation, Vince claimed to have purchased the equipment from an individual named
Mark Miller, who had appeared at his residence unannounced and offered the equipment for sale for
$1,000. Vince produced a bill of sale that, on its face, appeared to have been executed by Miller before
a notary public in Louisiana. However, at trial, the investigating officer testified that the Louisiana official
told him that Vince had appeared alone at his office to obtain the notary’s acknowledgment of execution
of the document. Law enforcement officers were unable to locate an individual named Mark Miller, and
Vince told them that he had never seen the man until he appeared at his door offering to sell the equipment.
2
A witness at trial testified that Vince had discussed the equipment with him and, rather than claiming
ownership through purchase, had told him that the equipment was borrowed.
¶3.
The defense did not call any witnesses.
II.
Admissibility of Prior Conviction
¶4.
The facts of this case illustrate the confusion that sometimes arises regarding the purposes for which,
and the circumstances under which, a defendant’s prior convictions may be introduced into evidence for
consideration by the jury. At the close of the prosecution’s case, the State sought a ruling that evidence
of Vince's prior conviction for interstate transportation of a stolen vehicle was admissible. In the context
of the prosecution's remarks and the timing of the motion, it is evident that the State sought the court’s
ruling as a warning shot across the defendant’s bow in anticipation that Vince might be considering taking
the stand in his own defense. The State's attorney specifically invoked Mississippi Rule of Evidence 609
in seeking a ruling from the court. Rule 609 deals strictly with the use of prior criminal convictions used
“[f]or the purpose of attacking the credibility of a witness . . . .” M.R.E. 609(a).
¶5.
Nevertheless, the State’s argument in favor of admissibility centered entirely on the proposition that
the prior conviction met one of the stated exceptions to Mississippi Rule of Evidence 404. Rule 404 deals
with the entirely different proposition that proof of prior criminal activity, though generally not admissible
if offered to persuade the jury that the defendant has a propensity for such behavior, may be admissible in
certain specific situations as tending to make the fact of defendant’s guilt more likely. M.R.E. 404(b).
Though not an exhaustive list, the rule suggests several circumstances where evidence of previous criminal
involvement may be admitted as bearing directly on the issue of guilt. The list includes matters such as
3
proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” M.R.E. 404(b).
¶6.
One of the principal differences between prior conviction evidence admitted under Rule 404(b) and
Rule 609 is that evidence of prior criminal activity admitted for one of the purposes allowed under Rule
404(b) is admissible as a part of the prosecution’s case in chief without regard to whether the defendant
may, or may not, take the stand in his own defense. On the other hand, it is self-evident that, if the
defendant elects not to testify, then there is no basis to impeach him as a witness and Rule 609 cannot be
the vehicle to get a prior conviction before the jury.
¶7.
In the case now before us, the prosecuting attorney initially framed his motion as being brought
under Rule 609 but the thrust of his argument was that the prior conviction was admissible under Rule
404(b), specifically to negate a claim of accident or mistake. The trial court, in ruling on the admissibility
of the prior conviction, also based its ruling on Rule 404(b) considerations and not Rule 609.
¶8.
Now, on appeal, Vince claims that the court’s determination was incorrect under Rule 609 and that
the prior conviction was not admissible for purposes of impeachment. He claims that he elected not to
testify based on the chilling effect of the court’s erroneous ruling and that this had the effect of denying him
a fundamentally fair trial. However, as the foregoing discussion has shown, the admissibility of this previous
conviction hinged, not on whether Vince elected to testify in his own defense, but on whether the defense
presented evidence from any source that tended to advance a claim that his possession of the stolen
property was somehow accidental or mistaken on his part. Once such a claim became a legitimate issue
in the trial, according to the trial court’s ruling, the prior conviction would be admissible.
¶9.
Certainly, the defendant taking the stand and advancing a version of events that tended to make
his possession appear accidental or based on some mistake would be one way to invoke a claim of
4
accident or mistake within the meaning of Rule 404(b), but it is just as certainly not the only way. Facts
setting up such a claim could also be provided by defense witnesses other than the defendant. This would
lay the predicate for admissibility of the prior conviction under the theory of the court’s ruling just as
effectively as testimony to that effect from Vince. By the same token, Vince could have testified in his own
defense and not said anything that would legitimately raise the issue of accident or mistake and the prior
conviction would remain inadmissible under Rule 404(b) because of the absence of a proper predicate, i.
e., putting a claim of accident or mistake at issue. In that second scenario, where the defendant testifies,
the question of whether the conviction would be admissible purely for impeachment purposes under Rule
609 would have been an entirely different matter.
¶10.
On the record now before us, the admissibility of the conviction purely for impeachment purposes
under Rule 609 has never been properly considered and ruled upon by the trial court. Our duty is to rule
on claimed errors committed at the trial level and we normally do not consider matters not first presented
to the trial court for a ruling. Crenshaw v. State, 520 So. 2d 131, 134-35 (Miss. 1988). In the case now
before us, the trial court ruled the conviction admissible for Rule 404(b) purposes. Vince contends in this
appeal that the conviction was not admissible for impeachment purposes under Rule 609, which, despite
some loose language in the record, has not been ruled on by the trial court. Nothing in the issues raised or
argued in this appeal significantly challenge the trial court's ruling as to Rule 404(b) admissibility, and, in all
events, a ruling based on Rule 404, even if erroneous, does nothing to improperly interfere with a
defendant's right to testify in his own defense. The issue is without merit.
III
Ineffective Assistance of Counsel
5
¶11.
The investigating officer was permitted to testify without objection that he discussed the
circumstances under which the sworn acknowledgment of the bill of sale had been obtained with the
Louisiana notary public and that the official had confirmed that Vince alone had appeared and requested
the official’s certification. Vince now asserts that this evidence was plainly objectionable hearsay and was
extremely damaging to the defense. He says that defense counsel’s failure to interpose a timely hearsay
objection to the damaging testimony is enough to demonstrate that he was denied his constitutionallyguaranteed right to effective assistance of counsel in defending the charges against him.
¶12.
Claims of ineffective assistance of counsel, in order to prevail, must meet a two-prong test. First,
it must be shown that counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668,
687 (1984). Secondly, it must be shown that, but for counsel’s deficient performance, there was a
substantial likelihood of a different outcome in the case. Id. We would agree that the statement offered
by the investigating officer concerning what he learned in a conversation with the Louisiana notary public
was hearsay that, upon a timely objection, ought to have been excluded from the evidence. We also are
satisfied that the evidence was damaging to the defense.
¶13.
However, there was a substantial amount of admissible evidence that tended to cast doubt on the
legitimacy of the bill of sale, including the fact that the mysterious seller named in the instrument could not
be located and the inherent implausibility of Vince’s version of events as related by him to the investigating
officer. When combined with the fact that the defense did not offer any evidence tending to establish a
legitimate transaction of sale between Vince and this shadowy figure, we conclude that there was a
substantial body of evidence from which the jury could reasonably conclude that the bill of sale was not
genuine, even without evidence regarding the Louisiana notary public’s purported knowledge about the
circumstances of its execution. That fact, combined with other evidence in the record tending to establish
6
Vince’s guilty knowledge concerning his possession of the equipment, appears to have made the overall
evidence of Vince’s guilt overwhelming with or without the hearsay statements allegedly made by the
Louisiana notary public. In that circumstance, even were we to conclude that defense counsel’s failure to
interpose a hearsay objection in this one instance, of itself, rose to the level of incompetent performance
that would invoke Strickland, we do not conclude that there was a reasonable probability that the
exclusion of this evidence would have resulted in an acquittal. For that reason, the claim of ineffective
assistance fails to meet the second part of the two-prong test of Strickland and, for that reason, cannot
succeed.
IV.
Circumstantial Evidence Instruction
¶14.
Vince claims that the case against him is based entirely on circumstantial evidence and that the trial
court erred in refusing his requested “two interpretation” instruction. Instructions of this nature are required
only when all of the evidence tending to establish guilt is circumstantial. Sullivan v. State, 749 So. 2d 983,
992 (¶ 20) (Miss. 1999). The Mississippi Supreme Court has said, in a drug possession case, that
eyewitness evidence placing illicit drugs in the defendant’s apartment was direct evidence of constructive
possession which negated the requirement of a circumstantial evidence instruction. Keys v. State, 478 So.
2d 267, 268 (Miss. 1985). In the case before us, there was eyewitness testimony that Vince was in actual
possession of the stolen equipment. Possession, as in Keys, is one of the essential elements of the crime,
the only remaining question in Vince’s case being his understanding of the nature of his possession. The
State was, beyond question, unable to present any direct evidence that Vince knew that the equipment had
been stolen; however, there was testimony that Vince had told conflicting stories regarding how he came
into possession of the property and had offered what the jury could reasonably have concluded was a
7
forged bill of sale as proof of ownership. That was, in our view, sufficient to support the jury’s
determination that Vince knew or reasonably should have known that the equipment was stolen. The
Mississippi Supreme Court observed in Keys that “[p]roof of felonious intent will always be by
circumstantial evidence except where the accused has confessed.” Id. However, intent or guilty
knowledge is only one element of the crime. We conclude that the direct evidence of possession was
enough, under established case law, to remove the necessity for a circumstantial evidence instruction or the
related “two interpretation” instruction.
V.
Proof of Prior Convictions for Enhanced Punishment
¶15.
The trial court permitted an amendment to the indictment to assert that Vince was a habitual
criminal subject to enhanced punishment under the provisions of Section 99-19-81 of the Mississippi Code.
There is no written motion in the record requesting such an amendment though there are statements in the
record by the prosecuting attorney that “the State has put him [Vince] on notice that it intends on
proceeding as an habitual . . . .” None of the dialogue on the record regarding the State’s intentions sets
out with any clarity the relevant facts necessary to identify the prior convictions relied upon by the
prosecution until after the sentencing hearing had begun.
¶16.
The order allowing the amendment, quoted in its entirety, states as follows:
This cause having come to be heard on motion of the State of Mississippi to amend
the above referenced indictment to reflect the habitual status of the defendant pursuant to
Mississippi Code Section 99-19-81 and the court having heard the evidence finds the
motion well taken as the defendant was convicted of two prior felonies. Therefore, it is
Ordered that the above referenced indictment is amended to reflect the habitual
status of the defendant pursuant to M.C.A. Section 99-19-81, as amended, the court
having heard the evidence finds the motion well taken as the defendant was convicted of
two prior felonies.
8
¶17.
While Vince’s complaint raised in his brief deals with the sufficiency of the evidence presented to
establish his two prior convictions, we are constrained to note as plain error the evident deficiency in the
form of the amended indictment insofar as it purported to charge Vince as a habitual offender. Uniform
Circuit and County Court Rule 11.03 requires that, in cases such as this:
[t]he indictment must include both the principal charge and a charge of previous
convictions. The indictment must allege with particularity the nature or description of the
offense constituting the previous convictions, the state or federal jurisdiction of any
previous conviction, and the date of judgment.
URCCC 11.03.1.
¶18.
In Ard v. State, the Mississippi Supreme Court considered an indictment that purported to charge
the defendant as a habitual offender. Ard v. State, 403 So. 2d 875, 876 (Miss. 1981). Apparently, the
necessary information as to one indictment was included in the amendment; however, the court found the
indictment to be defective on its face in its attempt to charge the necessary second prior conviction. As
to that conviction, the indictment read: “[A]nd the said Billy Ard was convicted in the State of Mississippi,
of another felony, same being Cause No. 218.” Id. The court said that “[i]t is readily seen that the
indictment does not meet the requirements of the statute . . .” and, thus, rendered invalid any attempt to
sentence Ard as a habitual offender. Id.
¶19.
In Lay v. State, the supreme court dealt with an indictment that purported to charge a single prior
drug-related conviction to enhance the degree of punishment in a heroin sale case. Lay v. State, 310 So.
2d 908, 909 (Miss. 1975). As to the prior conviction, the indictment charged as follows:
[that John Lay, Jr.] did willfully, knowingly, unlawfully and feloniously sell, barter and
transfer a controlled substance without authority of law, to-wit: Heroin, and that said John
Lay, Jr. has previously been convicted in New Orleans, Louisiana on May 20, 1969 and
July 15, 1969 for violation of the Uniform Controlled Substance Act of 1972, as amended
....
9
Id. The court found this language fatally defective as not supplying the necessary “particularity” to properly
charge prior convictions. Id. at 910. Equally as important to the case now before us, the supreme court
specifically held that “[t]hese defects in the indictment were not waived even though Lay failed to demur
to the indictment before trial.” Id.
¶20.
Because the defect in the indictment in this case was so fundamental and because of the importance
to the criminal process of a properly drawn indictment that fully acquaints the defendant with the nature of
the accusations brought against him, we note the matter as plain error and conclude that it requires us to
reverse Vince’s sentence insofar as he was sentenced as a habitual offender. See Usry v. State, 378 So.
2d 635, 639 (Miss. 1979) (discussion).
¶21.
We cannot leave this aspect of the case, however, without further observing the long-standing
admonition of the supreme court warning against the “tendency to routinely allow the state to produce some
documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual
offender . . . .” Seely v. State, 451 So. 2d 213, 215 (Miss. 1984). Rather than approving such an offhand treatment of the issue, the supreme court said:
We wish to leave no doubt that the requirement of a bifurcated trial means a full two-phase
trial prior to any finding that a defendant is an habitual offender and subject to enhanced
punishment. Further, a complete record of the second part of the trial must be made.
Id. In the case now before us, the entire extent of the proof as to Vince’s prior convictions consisted of
the following statement by the prosecuting attorney:
Your Honor, prior to sentencing, Your Honor, the State of Mississippi has filed a motion
to amend the indictment reflecting the habitual status of Mr. Jerry Vince.
In support of that motion we tender to the Court the NCIC report, demonstrating several
prior convictions. But for the purpose of this motion, I will highlight 1976, Mr. Vince was
sentenced to Angola Penitentiary in the State of Louisiana, for a term of eighteen months;
and in 1990, he was sentenced in the Federal District Court of Cincinnati, Ohio, for the
10
charge of Interstate Transportation of a Stolen Motor Vehicle, and was sentenced to
twenty-seven months. For the purpose of this motion, Your Honor, we tender this.
¶22.
Without reaching the unresolved issue of whether an unauthenticated computer printout purporting
to be an NCIC compilation of a defendant’s criminal history is sufficient evidence to establish prior
convictions beyond a reasonable doubt, we observe that, in this case, the report is not a part of the record.
The NCIC printout does not appear as one of the exhibits, nor is it listed as an exhibit in the official
transcript prepared by the court reporter. The State has the burden of proof as to all the essential elements
of the crime. Washington v. State, 645 So. 2d 915, 918 (Miss. 1994). Even without consideration of the
defects on the face of the indictment, we are forced to conclude that the State failed as a matter of law to
carry its burden of proof to show Vince’s requisite prior convictions beyond a reasonable doubt. Thus,
we conclude this to be a second and equally compelling reason to vacate Vince’s sentence insofar as it
purported to sentence him as a habitual offender under Section 99-19-81 of the Mississippi Code.
¶23.
We note that during the course of the sentencing hearing the prosecuting attorney offered the
observation that the State relied on the NCIC printout "pursuant to [Ficklin] v. State, a 2000 Court of
Appeals case, stating that computer printouts of the NCIC report were admissible and legally sufficient to
amend the indictment."
¶24.
This statement is incorrect. This Court’s decision in Ficklin v. State, 758 So. 2d 457 (Miss. Ct.
App. 2000) did not involve the question of the admissibility or the evidentiary worth of raw NCIC
printouts. Rather, that case dealt with computer-generated records of the Mississippi Department of
Corrections regarding Ficklin’s prior history of incarceration in this State, which records were found to be
exceptions to the hearsay exclusionary rule as being data compilations of records maintained in the ordinary
course of a public agency’s business. Ficklin, 758 So. 2d at 462. The records were further found to be
11
self-authenticating because they were certified in writing as being correct under the signature of the
custodian of those records. Id. These records are markedly different from NCIC records, which purport
to be a compilation of information gathered from various jurisdictions throughout the country, the accuracy
of which cannot necessarily be certified by the NCIC compiler. By way of example, though the NCIC
custodian may properly certify that the NCIC report is an accurate transcription of criminal records
supplied by the State of Idaho, that custodian is not in a position to assess the accuracy of the underlying
information provided by the records custodian. See Harveston v. State, 798 So. 2d 638, 640-41 (¶¶ 511) (Miss. Ct. App. 2000).
¶25.
Because we have already decided that the enhanced punishment meted out to Vince on this record
cannot be upheld, we find no purpose in delving further into the issue of the utility of NCIC records as
evidence. Rather, we end this portion of the opinion by offering this simple admonition from the Mississippi
Supreme Court in McIlwain v. State:
We have regularly upheld sentences under the habitual criminal statutes where the proof
of prior convictions was made by certified copies of the judgments of conviction. This
accords with the basic principle that the best evidence of a conviction is the
judgment of conviction.
McIlwain v. State, 700 So. 2d 586, 589 (¶ 13) (Miss. 1997) (emphasis supplied) (citations omitted). A
prosecuting attorney, intent on proving prior convictions, would do well to heed this simple and
straightforward advice from the Mississippi Supreme Court rather than needlessly testing the limits of the
rules of evidence by attempting to make do with increasingly remote and less reliable methods of proof.
¶26.
Our decision to reverse and render on the propriety of sentencing Vince as a habitual offender
renders moot another aspect of Vince’s claim that he received ineffective assistance of counsel. Vince
argued in his brief that his attorney’s failure to oppose the introduction of the NCIC report on hearsay
12
grounds rendered counsel’s performance ineffective when measured against the level of competency
guaranteed him by the Sixth Amendment. Having decided the question of sentencing as a habitual offender
in Vince’s favor on other grounds, we need not consider that claim on the merits.
VI.
Weight and Sufficiency of the Evidence
¶27.
Vince argues that the evidence was insufficient as a matter of law to support a guilty verdict.
Alternatively, he urges that the verdict was against the weight of the evidence, entitling him to a new trial.
His argument is based on what he perceives to be the unsatisfactory nature of the State’s proof of guilty
knowledge on his part. In claims of this nature, this Court must review all of the evidence and view it in the
light most favorable to upholding the verdict. McFee v. State, 511 So. 2d 130, 133 (Miss. 1987). We
are further required to conclude that the jury drew all reasonable inferences from the evidence in a manner
consistent with a finding of guilt. Id.
¶28.
We have, in another part of this opinion discussing the necessity for a circumstantial evidence
instruction, dealt with the evidence that we found was sufficient to support an inference of guilty knowledge
on Vince’s part. The conclusion we reached on that issue answers equally as well on this question and
demonstrates the lack of merit in Vince’s claim that the evidence was insufficient to convict.
¶29.
As to the claim that the verdict was against the weight of the evidence, we observe that the defense
presented no evidence to counterbalance the State’s proof that we have found sufficient to support a
reasonable inference of guilty knowledge on Vince's part. A new trial may be ordered on this ground only
to avoid a substantial miscarriage of justice. Groseclose v. State, 440 So. 2d 297, 300 (Miss.1983).
There was ample evidence that, if found credible by the jury, would establish Vince’s guilt and there was
essentially no affirmative evidence tending to show that his possession of the equipment was derived and
13
maintained innocently. The jury determines what weight and worth to give to the evidence. Meshell v.
State, 506 So. 2d 989, 991 (Miss. 1987). By its verdict, it plainly indicated that it found the State’s proof
trustworthy and we can discover no basis to conclude that the jurors somehow deviated from their duty
in so finding. Vince has failed to demonstrate that he is entitled to a new trial in order to avoid a manifest
injustice.
¶30. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY OF
CONVICTION OF RECEIVING STOLEN PROPERTY IS AFFIRMED. THE JUDGMENT
CONCLUDING THAT THE DEFENDANT IS SUBJECT TO ENHANCED PUNISHMENT
UNDER SECTION 99-19-81 OF THE MISSISSIPPI CODE AS A HABITUAL OFFENDER IS
REVERSED AND RENDERED AND THIS CAUSE IS REMANDED FOR THE SOLE
PURPOSE OF RESENTENCING THE APPELLANT. COSTS OF THIS APPEAL ARE
ASSESSED TO WALTHALL COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
14
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.