Jimmy Ford v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01124-COA
JIMMY FORD
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 CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
5/10/2002
HON. MARCUS D. GORDON
LEAKE COUNTY CIRCUIT COURT
WILLIAM MITCHELL MORAN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
KEN TURNER
CRIMINAL - FELONY
GUILTY OF STRONG-ARMED ROBBERYSENTENCED TO FIFTEEN YEARS.
REVERSED AND REMANDED - 12/09/2003
BEFORE MCMILLIN, C.J., MYERS AND GRIFFIS, JJ.
MYERS, J., FOR THE COURT:
¶1.
Jimmy Ford appeals his conviction of strong armed robbery. He asserts the following issues as
errors:
I. DID THE TRIAL COURT ERR BY FORCING THE DEFENDANT TO GO TO TRIAL ONLY
NINE DAYS AFTER HIS INDICTMENT?
II. WAS THE DEFENDANT PREJUDICED BY AN OUT OF COURT DISCUSSION BETWEEN
THE TRIAL JUDGE AND THE JURY?
III. DID THE TRIAL COURT ERR BY PROHIBITING THE APPELLANT FROM CALLING AN
ALIBI WITNESS?
FACTS
¶2.
On December 8, 2001, Oralew Pinkerman and Barbara Howard were operating a fireworks stand
when they were robbed by two men. The victims viewed a lineup and identified Jimmy Ford and Thomas
Junior May as the robbers. Ford was indicted on May 1, 2002, arraigned on May 2, tried and convicted
on May 9, and sentenced to a fifteen year sentence on May 10. There is no evidence in the record of a
request for a continuance. Ford argues that a request, made in the judge's chambers, should have been
granted because the defense attorney had two cases to try the two days preceding Ford's trial.
¶3.
At the trial, the victims and May testified against Ford. The defense called Annie Ford, Ford's
mother, to the stand. She was going to testify that her son, the defendant, was with her at the time of the
robbery. The State objected to the testimony of Annie Ford arguing that the defense had never notified
them of the alibi witness. The trial judge ruled that Annie Ford could not testify as to an alibi because the
defense failed to disclose the alibi defense. Ford was convicted.
LEGAL ANALYSIS
I. DID THE TRIAL COURT ERR BY FORCING THE APPELLANT TO GO TO TRIAL ONLY
NINE DAYS AFTER HIS INDICTMENT?
¶4.
There is no evidence in the record of a formal request for a continuance. As such, we have no way
to review the request. Our law is well settled in that we "will not consider matters which do not appear in
the record and must confine [ourselves] to what actually does appear in the record.” Wilson v. State, 755
So. 2d 2, 4 (¶ 8) (Miss. Ct. App. 1999) (quoting Medina v. State, 688 So.2d 727, 732 (Miss.1996)).
2
"Moreover, we cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven
by the record." Medina, 688 So. 2d at 732. As a result, the issue is procedurally barred.
II. WAS THE APPELLANT PREJUDICED BY AN OUT OF COURT DISCUSSION BETWEEN
THE TRIAL JUDGE AND THE JURY?
¶5.
Ford further argues that he was prejudiced when the trial judge spoke to the jury outside of the
courtroom. During the motion for a new trial, the trial judge stated he had talked to the jury but not about
the case. He stated that the only communication dealt with how the jury was doing and if the trial judge
could do anything for the jury.
¶6.
Ford does not show any prejudice other than his conviction. Ford cannot advance any meaningful
argument as to prejudice, except to assume or infer some taint on the jury's deliberations. In addition, Ford
has failed to provide any authority in support of his argument. We can not infer prejudice from that type
of communication. Gazaway v. State, 708 So. 2d 1385, 1387 (¶ 7) (Miss. Ct. App. 1998). As a result,
the issue is procedurally barred.
III. DID THE TRIAL COURT ERR BY PROHIBITING THE APPELLANT FROM CALLING AN
ALIBI WITNESS?
¶7.
Finally, Ford argues that the trial judge failed to follow the guidelines in Box v. State, 437 So. 2d
19 (Miss. 1984). In addition, Ford argues that the trial court erred when Annie Ford was not allowed to
testify as an alibi witness.
¶8.
Under similar circumstances, we have previously ruled that the trial judge does not have to consider
the Box guidelines. Houston v. State, 752 So. 2d 1044, 1047 (¶ 11) (Miss. Ct. App. 1999). In
Houston, the defense attorney produced a list of witnesses the morning of the trial. It was not until the
court ordered the defense to disclose the nature of the testimony of two previously non-disclosed witnesses
that it was discovered that their testimony would relate to an alibi. The trial judge considered the options
3
granted by Uniform Rule of Circuit and County Court 9.05 and sustained the State's objection to the calling
of the alibi witnesses. Houston, 752 So. 2d at 1047 (¶ 13). The defense appealed asserting that trial
judge failed to consider the Box guidelines. We affirmed stating:
When the supreme court elected to formalize procedures recommended in Box and extend
the application of the procedures to defense discovery violations, it incorporated the
procedures into Rule 9.04, which dealt with discovery matters pertaining to all areas
except matters of alibi. The matter of discovering an alibi defense was handled by a
separate rule that set out different duties for the State and the defense from those in Rule
9.04. The rule also set out different sanctions for dealing with violations of the rule. See
URCCC 9.05. Rule 9.05 makes no cross-reference to Rule 9.04. Had the supreme court
intended the Box procedures to apply to matters of alibi, it could have so provided when,
in 1995, it adopted the Uniform Circuit and County Court Rules. We interpret the
supreme court’s failure to do so as an indication that the court intended for proceedings
relating to alibi defenses to continue to be handled differently from other discovery matters.
Houston, 752 So. 2d at 1046-47 (¶ 11).
¶9.
Therefore, the trial judge's refusal to consider the Box guidelines was proper. While the trial judge
in this case did not on the record consider the other options available to him under Uniform Rule of Circuit
and County Practice 9.05, Ford does not argue that the trial judge should have considered the other
options. Thus, we decline to address that issue.
¶10.
We do find, however, that the trial court erred in prohibiting Ford’s witness from testifying as to
his alibi defense. Mississippi Uniform Rule of Circuit and County Court Practice 9.05 states:
Upon the written demand of the prosecuting attorney stating the time, date, and
place at which the alleged offense was committed, the defendant shall serve within ten
days, or at such other time as the court may direct, upon the prosecuting attorney a written
notice of the intention to offer a defense of alibi, which notice shall state the specific place
or places at which the defendant claims to have been at the time of the alleged offense and
the names and addresses of the witnesses upon which the defendant intends to rely to
establish such alibi.
Within ten days thereafter, but in no event less than ten days before the trial, unless
the court otherwise directs, the prosecuting attorney shall serve upon the defendant or the
defendant's attorney a written notice stating the names and addresses of the witnesses upon
whom the state intends to rely to establish the defendant's presence at the scene of the
4
alleged offense and any other witnesses to be relied on to rebut testimony of any of the
defendant's alibi witnesses.
If, prior to or during trial, a party learns of an additional witness whose identity, if
known, should have been included in the information previously furnished, the party shall
promptly notify the other party or the party's attorney of the name and address of such
additional witness.
Upon the failure of either party to comply with the requirements of this rule, the
court may use such sanctions as it deems proper, including:
1.
Granting a continuance;
2.
Limiting further discovery of the party failing to comply;
3.
Finding the attorney failing to comply in contempt; or
4.
Excluding the testimony of the undisclosed witness.
This rule shall not limit the right of the defendant to testify in his/her own behalf.
For good cause shown, the court may grant an exception to any of the
requirements of this rule.
¶11.
In our analysis of the rule, it appears that the requirement to disclose alibi witnesses must be
triggered by the prosecution. Only after the prosecuting attorney makes a written demand is the defendant
then required to provide a written notice of his intent to offer a defense of alibi. In addition, the defendant
has ten days to provide this notice along with the requisite information.
¶12.
Unlike Houston, the record in this case shows no such demand by the prosecution. Even
assuming, arguendo, that the prosecution did deliver a written demand to Ford, he would still be entitled
to ten days to provide his written notice of intent along with the names of the witness he anticipates calling
in support of his alibi defense. Considering the fact that only nine days elapsed from the indictment to the
trial, it would have been impossible for Ford to comply with the rule. Therefore, the trial court erred in
denying Ford the opportunity to present his alibi witnesses. Ford is entitled to a new trial.
¶13. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS REVERSED AND
REMANDED. COSTS ARE ASSESSED TO LEAKE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, P.J.
5
IRVING, J., CONCURRING:
¶14.
I agree that this case should be reversed for the reasons stated in the Court's opinion. However,
I write to record my view that it was improper for the trial judge to speak with the jury outside of the
courtroom and to discourage this sort of conduct on the part of trial judges.
¶15.
The trial judge stated that he did not discuss the case with the jury and that his communication with
the jury was limited to a discussion of how the members were doing and if there was anything he could do
for them. There is nothing in the record to contradict or cast doubt on the veracity of the judge's statement.
Therefore, I agree with the majority that Ford has not shown any prejudice from what I believe was an
improper communication. However, I believe that such ex parte communications — especially by the one
individual who is suppose to be the quintessential personification of neutrality and impartiality in a judicial
proceeding — run the risk of diminishing litigants' confidence in the fairness of the judicial process because
of the appearance that some unpropitious discussion may have occurred.
¶16.
Here, the evidence does not suggest any valid reason why the trial judge could not have waited until
after the court had been convened, with the jury in the jury box and counsel and client present, to make
the inquiry which was made here. Moreover, I note that Rule 3.02 of the Uniform Circuit and County
Court Rules prohibits attorneys from having any personal contact with the jury, and Rule 3.04 prohibits a
person, or an attorney for a person involved in any case, from communicating with the jury. While these
rules speak to attorney conduct, I cannot imagine any reason why the trial judge, absent some type of
emergency or special circumstance, should not conduct himself accordingly while outside the courtroom
setting.
KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.
6
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.
