Eddie Ray Jones v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-KA-00202-COA
EDDIE RAY JONES
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
06/24/2008
HON. ALBERT B. SMITH III
BOLIVAR COUNTY CIRCUIT COURT
STAN PERKINS
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTED OF AGGRAVATED ASSAULT
AND SENTENCED AS A HABITUAL
OFFENDER TO TWENTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PROBATION
OR PAROLE
AFFIRMED - 08/23/2011
EN BANC.
CARLTON, J., FOR THE COURT:
¶1.
Eddie Ray Jones was convicted in the Circuit Court of Bolivar County of aggravated
assault and sentenced as a habitual offender to twenty years in the custody of the Mississippi
Department of Corrections (MDOC). Thereafter, Jones filed a post-trial motion for judgment
notwithstanding the verdict (JNOV), which was denied by the trial court. Jones then filed
a post-trial motion for a new trial, which the trial court subsequently denied. Jones now
appeals.
FACTS
¶2.
On March 22, 2007, Investigator George Serio with the Cleveland Police Department
responded to a call in reference to a shooting that occurred on White Street in Cleveland,
Mississippi. After arriving at the scene, Investigator Serio learned that Camisha Cleveland
was shot while driving in her car down White Street. Jones, Henry Taylor, Maurice
Williams, and Latoya Sellers were subsequently arrested.
¶3.
On September 21, 2007, Jones and Taylor were indicted by a Bolivar County grand
jury for the crimes of aggravated assault and possession of a firearm by a convicted felon.
After a trial in the Bolivar County Circuit Court on May 19-20, 2008, the jury found Jones
guilty of aggravated assault, but not guilty of possession of a firearm by a convicted felon.
The jury found Taylor guilty of aggravated assault and guilty of possession of a firearm by
a convicted felon. The trial court sentenced Jones as a habitual offender to twenty years in
the custody of the MDOC for his aggravated-assault conviction. The trial court sentenced
Taylor to ten years in the custody of the MDOC and to ten years of post-release supervision
for his aggravated-assault conviction, and to three years in the MDOC’s custody for his
possession of a firearm conviction to run consecutively to his aggravated-assault sentence.
¶4.
On June 3, 2008, Jones filed a motion for a JNOV, which was denied by the trial court
on June 13, 2008. Then, on June 30, 2008, Jones filed a motion for a new trial. The trial
2
court filed a denial of this motion on July 14, 2011. Aggrieved, Jones appeals 1 raising the
following issues: whether (1) the court erred in telling the jury that he had a prior conviction
for the sale of cocaine; and (2) there was sufficient evidence to sustain his aggravated-assault
conviction. Finding no error, we affirm.
JURISDICTION
¶5.
Before we analyze Jones’s claims, we must first address the issue of whether this
Court has proper authority to consider this appeal. Although neither party has questioned
this Court’s jurisdiction, “it is incumbent upon this Court to assure that such jurisdiction
exists.” Ross v. State, 16 So. 3d 47, 52 (¶6) (Miss. Ct. App. 2009). In the present case, the
trial court filed its judgment on May 20, 2008. On June 3, 2008, Jones filed a motion for a
JNOV, which the trial court denied on June 13, 2008. On June 18, 2008, the trial court filed
Jones’s sentencing judgment. On June 30, 2008, Jones filed a motion for a new trial. Then,
on July 24, 2008, the trial court filed an amended sentencing judgment. Jones filed his notice
of appeal on July 25, 2008. On July 14, 2011, while the case was on appeal, the trial court
filed an order denying Jones’s motion for a new trial.2 We recognize that under Rule 2(c)
of the Mississippi Rules of Appellate Procedure, “[i]n the interest of expediting decision, or
for other good cause shown, the Supreme Court or the Court of Appeals may suspend the
requirements or provisions of any of these rules in a particular case on application of a party
1
The record reflects that while Taylor initiated an appeal, his appeal was dismissed
due to his failure to file an appellate brief.
2
We pause to note that because the trial court ruled upon Jones’s motion for a new
trial while Jones’s appeal was before this Court, the trial court’s order denying Jones’s
motion for a new trial was not initially part of the record in this case.
3
or on its own motion and may order proceedings in accordance with its direction; provided,
however, in civil cases the time for taking an appeal as provided in Rules 4 or 5 may not be
extended.” Therefore, in accordance with Rule 2(c) and in the interests of expediting justice,
we have considered the assignments of error raised by Jones in his appeal.
DISCUSSION
I. PRIOR CONVICTION
¶6.
While conducting voir dire, the trial judge read the indictment to the veniremen for
the purpose of determining whether any potential juror had previously heard the facts of the
case. While reading the indictment, the trial judge stated that it was alleged that Jones
possessed a firearm, a pistol, after he had been previously convicted of the felony crime of
sale of cocaine. Even though the State provided Jones with pretrial notice of its intent to use
the prior convictions at trial, Jones objected and moved for a mistrial, which was denied by
the trial judge.
¶7.
In his first assignment of error, Jones argues that the trial court erred by informing the
jury during voir dire that Jones had a prior conviction for the sale of cocaine. Specifically,
Jones claims that Rule 11.03 of the Uniform Rules of Circuit and County Court3 establishes
3
Rule 11.03 provides:
In cases involving enhanced punishment for subsequent offenses under state
statutes:
1. The 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,
4
the method by which trial courts must handle trials involving enhanced punishments. Jones
contends that implicit in Rule 11.03 is the requirement that a jury not hear the details of a
defendant’s prior conviction(s) for fear the information will prejudice the jury. Jones also
argues that his conviction should be overturned because of its factual similarity to Williams
v. State, 37 So. 3d 717 (Miss. Ct. App. 2010), wherein this Court overturned a defendant’s
conviction for aggravated assault and felony possession of a weapon.
A. Reading of the Indictment
¶8.
A review of the record shows that Jones raised this assignment of error before the trial
court in his motion for a new trial. The standard of review for the grant or denial of a motion
for new trial is abuse of discretion. Bennett v. State, 50 So. 3d 369, 371 (¶12) (Miss. Ct.
App. 2010) (citing Hill v. State, 912 So. 2d 991, 995 (¶25) (Miss. Ct. App. 2004)). “A new
trial should only be granted if ‘the verdict is so contrary to the overwhelming weight of the
evidence that failure to grant the motion for a new trial would result in unconscionable
and the date of judgment.
The indictment shall not be read to the jury.
2. Separate trials shall be held on the principal charge
and on the charge of previous convictions. In the trial on
the principal charge, the previous convictions will not be
mentioned by the [S]tate or the court except as provided
by the Mississippi Rules of Evidence.
3. If the defendant is convicted or enters a plea of guilty
on the principal charge, a hearing before the court
without a jury will then be conducted on the previous
convictions.
5
injustice.’” Id. “In deciding whether a verdict is against the overwhelming weight of the
evidence, ‘this Court must view all evidence in the light most consistent with the verdict.’”
Id.
¶9.
After reviewing the record, we find this issue is without merit. A review of Rule
11.03 of the Uniform Rules of Circuit and County Court shows this rule to be inapplicable
to the case at hand. Rule 11.03 speaks to cases involving enhanced punishments for
subsequent offenses, which is not at issue in today’s case.
¶10.
Furthermore, while we recognize that the United States Supreme Court in Old Chief
v. United States, 519 U.S. 172, 191-92 (1997), has strongly endorsed the practice of allowing
a defendant to stipulate to his status as a previously convicted felon, we find that the record
shows that despite pretrial notice of the State’s intent to use the prior convictions at trial,
Jones failed to enter such a stipulation prior to the commencement of the trial and prior to the
time that the trial judge read the indictment to the jury.4 The Mississippi Supreme Court has
addressed Old Chief and concluded:
4
The Supreme Court in Old Chief stated:
This recognition that the prosecution with its burden of persuasion needs
evidentiary depth to tell a continuous story has, however, virtually no
application when the point at issue is a defendant's legal status, dependent on
some judgment rendered wholly independently of the concrete events of later
criminal behavior charged against him . . . . The most the jury needs to know
is that the conviction admitted by the defendant falls within the class of crimes
that Congress thought should bar a convict from possessing a gun, and this
point may be made readily in a defendant's admission and underscored in the
court's jury instructions . . . .
Id. at 190-91.
6
Where evidence of a prior conviction is a necessary element of the crime for
which the defendant is on trial (i.e., possession of firearm by a convicted
felon), but evidence of the specific nature of the crime for which the defendant
was previously convicted (i.e., armed robbery), is not an essential element of
the crime for which the defendant is on trial . . . the trial court should accept
a defendant's offer to stipulate and grant a limiting instruction.
Timms v. State, 54 So. 3d 310, 315 (¶17) (Miss. Ct. App. 2011) (quoting Williams v. State,
991 So. 2d 593, 605–06 (¶40) (Miss. 2008)) (emphasis added).
¶11.
In the present case, Jones was charged with aggravated assault and possession of a
firearm by a convicted felon. Jones had been previously convicted of selling cocaine, a
felony. Jones was, therefore, entitled to a stipulation as to his status as a convicted felon.
However, the record shows that Jones did not enter into a stipulation as to his prior
convictions prior to the commencement of the trial and prior to the time that the trial judge
read the indictment to the jury. Moreover, the record reflects that Jones failed to stipulate
to his prior conviction until the close of the State’s case-in-chief.
¶12.
The record shows, during voir dire, the trial judge read Jones’s indictment to the jury.
Jones’s counsel, Stan Perkins, objected, and the following exchange occurred outside of the
presence of the jury:
PERKINS:
Judge, the Court just stated that my client was previously
convicted of the sale of cocaine. We stipulated that he
was a convicted felon. But I think that’s extremely
prejudicial to state the specific felony he’s charged –
which he was charged.
THE COURT:
In eight years I’ve always paraphrased the indictment. I
had no request by anybody [sic] not to do what I’ve done
in every case I’ve ever had. I’m not trying to do
anything other than to see if anybody heard about it. I
certainly would not try to prejudice your client, Counsel.
7
PERKINS:
Judge, I just never expected the Court to do this.
....
PERKINS:
I don’t have a choice but to move for a mistrial.
THE COURT:
Okay. That’s denied. Do y’all have a response?
PROSECUTOR:
Judge, only that right now as it stands, the State has
exhibits it would submit that would state the same thing
without there having been a motion.
THE COURT:
Is it going to be in the case[-]in[-]chief?
PROSECUTOR:
Yes. Unless you want me to stipulate in a motion
received by the State.
THE COURT:
No, it’s too late at this point for that anyway.
....
THE COURT:
Denied.
(Emphasis added). While the above-stated testimony shows that Jones claimed to have
stipulated to his prior convictions, the record fails to include any evidence showing that Jones
offered evidence of his prior convictions, or stipulated to his prior convictions, prior to the
time that the trial judge read the indictment to the jury during voir dire. In fact, the record
shows that Jones entered into a stipulation as to his prior felony conviction on the record at
the close of the State’s case-in-chief, well past the commencement of the trial and only after
the State was required to prove the elements of the offenses beyond a reasonable doubt. As
such, we find no merit to this argument.
B. Mississippi Precedent
¶13.
In Jones’s brief on appeal, he states:
8
Rule 11.03 of the Uniform Circuit Court and County Court Rules [sic]
establishes the method by which [c]ircuit [c]ourts are to handle trials involving
enhanced punishment. Implicit in this [r]ule is the understanding that [j]uries
are not to hear details of a [d]efendant’s prior conviction(s) for fear the
information will prejudice the jury.
While, in this case, it is true that Eddie Ray Jones was charged with the crime
of being a felon in possession of a firearm, the [c]ourt could have easily
described the charge as simply that without further detail. Instead, the [c]ourt
chose to describe not once, but twice the fact that Jones had previously been
convicted of the [s]ale of [c]ocaine. Compound this with the fact that the
[c]ourt also stated [d]efendant Taylor’s prior conviction, over objection, and
the [a]ppellant contends he was irreparably prejudiced.
The [a]ppellant relies on a recent ruling from this Honorable Court involving
the same [t]rial [j]udge. In Williams v. State, 2009-KA-00900-COA, [37 So.
3d 717 (Miss. Ct. App. 2010)], Williams’[s] conviction for aggravated assault
and felony possession of a weapon was overturned for precisely the same
reason. Reversal of Jones’[s] conviction in [c]ount [o]ne, therefore, should
follow.
While Jones cites Williams v. State, 37 So. 3d 717 (Miss. Ct. App. 2010), to support his
proposition that the trial court violated Rule 11.03 by notifying the jury of his prior
convictions, we find that the cited case does not provide an analysis of the application of
Rule 11.03, and in fact, it does not even mention Rule 11.03. Further, as evidenced by the
above-stated language, Jones makes no attempt to provide this Court with any argument or
explanation as to the relevance of Williams to the assignment of error raised. “This Court
has repeatedly held that where the appellant provides no meaningful argument in support of
an assignment of error raised, the issue is waived on appeal.” Duncan v. State, 939 So. 2d
772, 784 (¶43) (Miss. 2006). See also King v. State, 857 So. 2d 702, 716 (Miss. 2003); Jones
v. State, 841 So. 2d 115, 138 (Miss. 2003); Clay v. State, 881 So. 2d 323, 329 (Miss. Ct. App.
9
2004). Therefore, in accordance with Duncan, we find that Jones waived this issue on
appeal.
¶14.
Notwithstanding the procedural bar, we find this issue is without merit. In Williams,
Jackson Williams Jr. was convicted of aggravated assault and possession of a weapon by a
convicted felon. Williams, 37 So. 3d at 719 (¶¶3-5). On appeal, this Court reversed
Williams’s weapon possession conviction after finding that his knife was not a prohibited
weapon under the applicable statute. Id. at 719-20 (¶5). After making this conclusion, this
Court turned to consider the issue of retroactive misjoinder, which “occurs when joinder of
multiple counts was initially proper but, through later developments such as an appellate
court’s reversal of less than all convictions, joinder has been rendered improper.” Id. at 720
(¶7). In adopting the doctrine of retroactive misjoinder, this Court announced the following
two-part test: “(1) was evidence admitted at trial on the vacated count that would not have
otherwise been admissible on the remaining count and, if so, (2) can the defendant
demonstrate clear prejudice as a result of the inadmissible evidence that was presented to the
jury.” Id. at 721 (¶10) (emphasis added). After considering the evidence and finding that
Williams met both prongs of the retroactive-misjoinder analysis, this Court reversed
Williams’s aggravated-assault conviction and remanded the case to the lower court. Id. at
727-28 (¶31).
¶15.
After applying the retroactive-misjoinder analysis to the facts at hand, we find that,
regardless of whether the evidence of Jones’s prior convictions would have been admitted
at trial solely to prove the count of aggravated assault, then Jones failed to meet his burden
of proving that the evidence of his prior convictions prejudiced him. In fact, as evidenced
10
above, Jones fails to provide this Court with an argument to support his contention that he
was “irreparably prejudiced” by the jury’s knowledge of his previous conviction of the sale
of cocaine and that this case should be overturned based on the holding in Williams. See
Williams, 37 So. 3d at 721 (¶10). Therefore, we find this issue lacks merit.
II. SUFFICIENCY OF THE EVIDENCE
¶16.
In his next assignment of error, Jones argues that the evidence presented at trial was
legally insufficient to support his aggravated-assault conviction and that the trial court erred
by denying his request for a peremptory jury instruction as to the sufficiency of the
evidence.5 Jones asserts that because he was acquitted of possession of a firearm by a
convicted felon, it logically follows that the jury did not find that he possessed or fired a gun
on the day in question; therefore, the jury could only have found him guilty of aiding and
abetting in the aggravated assault. Jones further contends that since no proof existed that he
assisted the shooter or instructed the shooter to fire his weapon, the jury should have
acquitted him of the charge of aggravated assault.
¶17.
The State responds by pointing to Edwards v. State, 797 So. 2d 1049, 1058 (¶25)
(Miss. Ct. App. 2001) (quoting Ruiz v. State, 641 S.W.2d 364, 366 (Tex. Ct. App. 1982)), for
the proposition that, “where a multi-count verdict appears inconsistent, the appellate inquiry
is limited to a determination of whether the evidence is legally sufficient to support the
counts on which a conviction is returned. What the jury did with the remaining counts is
immaterial.”
Accordingly, the State argues that the fact that Jones was acquitted of
5
In discussing this assignment of error, Jones fails to point to the specific jury
instruction upon which he asserts error.
11
possession of a firearm by a convicted felon has no bearing whatsoever on a review of the
sufficiency of the evidence of his aggravated-assault conviction. The State further argues
that sufficient evidence existed for the jury to determine that Jones was principally liable for
aggravated assault or, in the alternative, aided and abetted Taylor in committing aggravated
assault.
¶18.
When reviewing the sufficiency of the evidence, an appellate court “views the
evidence in the light most favorable to the prosecution and asks if ‘any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” Gilbert
v. State, 48 So. 3d 516, 520 (¶12) (Miss. 2010) (quoting Bush, 895 So. 2d 836, 843 (¶16)
(Miss. 2005)). A person is guilty of aggravated assault if he “attempts to cause serious
bodily injury to another, or causes such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human life[.]” Miss. Code
Ann. § 97-3-7(2)(a) (Supp. 2010).
¶19.
Considering the evidence in light most favorable to the State, we find that sufficient
evidence existed to convict Jones of aggravated assault. At trial, Sellers, testified that on
March 22, 2007, as she was driving down White Street with Williams, she passed a large
crowd of people walking on the side of the street. Sellers testified that as she was driving
down White Street, she heard someone in the crowd yell an insult toward Williams. Sellers
testified that after the insult was lodged, Williams stepped out of her vehicle and exchanged
words with Jones, who was in the crowd. Sellers further testified that through her rear-view
mirror, she saw Jones with a gun running behind her vehicle and then shots were fired.
Investigator Serio testified that through his investigation, he was able to conclude that Jones
12
and Taylor would have been shooting east on White Street. Investigator Serio further
testified that Cleveland, the victim, was traveling west on White Street when a bullet entered
her front windshield and struck her.
¶20.
Accordingly, we find that when the evidence is viewed in the light most favorable to
the prosecution, “any rational trier of fact could have found” beyond a reasonable doubt that
Jones was guilty of aggravated assault. Gilbert, 48 So. 3d at 520-21 (¶15) (quoting Bush,
895 So. 2d at 843)).6 Jones’s argument that his aggravated-assault conviction lacks sufficient
supporting evidence is without merit.
¶21.
Further, we recognize that while Jones argues that the trial court erred by refusing his
proposed peremptory jury instruction as to the sufficiency of the evidence, we find that this
argument also lacks merit. “The denial of motions for a peremptory jury instruction, motions
for a directed verdict and motions for a judgment notwithstanding the verdict all implicate
the sufficiency of the evidence.” Reed v. State, 987 So. 2d 1054, 1057 (¶10) (Miss. Ct. App.
2008) (citing Bell v. State, 910 So. 2d 640, 646 (¶16) (Miss. Ct. App. 2005)). Because we
have found that sufficient evidence exists supporting Jones’s aggravated-assault conviction,
we, likewise, find that this argument lacks merit.
6
“[I]t is well-settled law that the jury determines the credibility of witnesses and
resolves conflicts in the evidence.” McKay v. State, 59 So. 3d 644, 646 (¶6) (Miss. Ct. App.
2011) (citations omitted). Furthermore, we recognize that “a jury is allowed to consider all
logical inferences flowing from the evidence.” Anderson v. State, 874 So. 2d 1000, 1006
(¶22) (Miss. Ct. App. 2004). This Court “will not re-weigh the evidence, as matters
regarding the weight and credibility of the evidence are to be resolved by the jury.”
Holloway v. State, 860 So. 2d 1244, 1246 (¶9) (Miss. Ct. App. 2003) (citing McClain v.
State, 625 So. 2d 774, 778 (Miss. 1993)).
13
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE AS A HABITUAL
OFFENDER OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION
OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
BOLIVAR COUNTY.
LEE, C.J., GRIFFIS, P.J., ISHEE AND MAXWELL, JJ., CONCUR. BARNES
AND ROBERTS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. RUSSELL, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY
IRVING, P.J.
MYERS, J., NOT
PARTICIPATING.
RUSSELL, J., DISSENTING:
¶23.
The majority finds that the evidence is sufficient to convict Eddie Ray Jones of
aggravated assault. I find that the jury was improperly instructed, and the verdict is against
the weight and sufficiency of the evidence. Therefore, I respectfully dissent.
I. SUFFICIENCY OF THE EVIDENCE – AGGRAVATED ASSAULT
¶24.
When reviewing the sufficiency of the evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation omitted). The State failed to
offer sufficient evidence for the jury to determine that Jones was individually liable for
aggravated assault.
¶25.
Count I of the indictment charges that “Eddie Ray Jones and Henry Taylor A/K/A
Main . . . individually, or while aiding and abetting and/or acting in concert with each other,
did purposely, knowingly or recklessly, under circumstances manifesting extreme
indifference to the value of human life, cause serious bodily injury to Camisha Cleveland,
14
by shooting into the street or traffic.” Thirteen witnesses testified at trial. One individual,
Latoya Sellers, testified that she saw Jones with a gun. Sellers was the girlfriend of Maurice
Williams; she testified that Williams got out of her car with a weapon immediately prior to
her hearing gunshots. Sellers gave three different versions of the events to authorities. First,
she told the police that she did not see anyone with a gun, because she had been driving. By
the time of her third statement to the police, Sellers remembered that she had seen Jones with
a gun. She also remembered that her boyfriend, Williams, had a gun in his hand when he left
her car. Sellers testified that after Williams had exited the car, she heard a gunshot, but she
did not testify that the shot was fired by Jones. The record indicates that neither Sellers nor
any other witness saw Jones shoot a gun. The assault on Cleveland was the result of a bullet
entering the windshield of her car, striking her, and causing injury. The State provided no
evidence that Jones fired a weapon into the street or traffic that caused serious bodily injury
to Cleveland.
¶26.
Jurors are expected to use common sense and sound honest judgment in considering
and weighing the testimony and credibility of the witnesses. The fact that the jury acquitted
Jones for possession of a firearm would indicate that they did not believe Sellers and rejected
her testimony that she saw Jones with a gun. In the absence of Jones possessing a gun, it
would be an illogical conclusion that he could have fired the shot that injured Cleveland.
Absent other proof, the evidence is insufficient to find Jones individually liable for
aggravated assault. See Sands v. State, 62 So. 3d 374, 378 (¶¶17-20) (Miss. 2011).
¶27.
The majority relies on Edwards v. State, 797 So. 2d 1049, 1058 (¶25) (Miss. Ct. App.
2001) for the proposition that how the jury ruled on one count is immaterial as to how they
15
ruled in another count of a multi-count verdict. However, the fact that the jury determined
that Jones did not have a gun cannot be ignored in determining if he was principally
responsible for the shot fired which caused the injury to Cleveland.
II. SUFFICIENCY OF THE EVIDENCE – AIDING AND ABETTING
¶28.
The State failed to offer sufficient evidence proving that Jones aided and abetted or
acted in concert with Henry Taylor in committing aggravated assault. The Mississippi
Supreme Court explained long ago that an aider and abetter must “do something that will
incite, encourage, or assist the actual perpetrator in the commission of the crime.” Crawford
v. State, 133 Miss. 147, 147, 97 So. 534, 534 (1923). Further, “[o]ne who aids and abets
necessarily enters into an agreement that an unlawful act will be done. He participates in the
design of the felony.” King v. State, 857 So. 2d 702, 728 (¶91) (Miss. 2003). See, e.g., Sims
v. State, 908 So. 2d 186, 188 (¶¶7-8) (Miss. Ct. App. 2005) (finding that an aiding-andabetting instruction was proper where defendant called and made plans to meet coindictee,
then requested, and used coindictee’s gun to commit aggravated assault).
¶29.
The record includes no evidence of Jones’s assisting, encouraging, inciting, or
planning with Taylor to shoot into the crowd, street, or traffic. I have searched the record,
without success, to find any testimony or other evidence that Jones communicated with
Taylor in any manner during the incident that led to the injury of Cleveland. Of the thirteen
witnesses, not one inference was provided that there was a plan or any act by Jones to assist,
encourage, incite, or support Taylor in any criminal act. Similarly, there is not one scintilla
of evidence, either direct or circumstantial, that Jones had knowledge of any criminal act
until, like everyone else in the area, Williams stepped from Sellers’s car and the shooting
16
began. In fact, the record includes no evidence of any interaction between Jones and Taylor
that would rise to the level of aiding and abetting.
¶30.
“Mere presence” at the scene of a crime and knowledge that a crime is being
committed are not sufficient to establish that a defendant either directed or aided and abetted
the commission of the crime. Hughes v. State, 983 So. 2d 270, 276 (¶14) (Miss. 2008)
(citation omitted). Considering the evidence in light most favorable to the prosecution, I find
that the evidence is insufficient to convict Jones of aiding and abetting or acting in concert
with Taylor in committing aggravated assault.
The trial judge stated, following the
announcement of the verdict, “the only thing I could think is that they went to the aiding and
abetting which was part of the indictment which was – and jury instruction was given along
those lines.” Further, in denying Jones’s motion for a judgment notwithstanding the verdict
(JNOV), the trial judge again stated: “Obviously, the jury concluded that the Defendant
aided his co-defendant in the commission of the aggravated assault.” But then the trial judge
seems to find that the jury found Jones guilty by acting individually.7 The majority points
to no testimony in the record to support a conviction of Jones for aiding and abetting because
none exists. The State points to no evidence in the record to support proof of any element
required for aiding and abetting. There is nothing to indicate that Jones deliberately
associated himself in some way with the crime and participated in it with the intent to bring
about the crime. Sellers’s testimony that she heard someone in the crowd yell an insult
toward Williams or even that the two exchanged words is insufficient to show that Jones
7
The trial judge also denied the motion for a JNOV based on the weight of the
evidence rather than viewing the sufficiency of proof of each element of the crime.
17
aided and abetted or acted in concert with Taylor in committing aggravated assault. An
indictment which charges that parties acted in concert does not relieve the prosecution of the
obligation to establish (1) a joint action and (2) an injury occurring as a result of that joint
action, rather than some other action. Hedrick v. State, 637 So. 2d 834, 837 (Miss. 1994)
(citations omitted). Accordingly, I would reverse Jones’s aggravated-assault conviction and
render a judgment of acquittal.
III. PLAIN-ERROR REVIEW
¶31.
On appeal, Jones does not challenge the jury instructions or the weight of the
evidence.8 As no contemporaneous objection was made, this issue is procedurally barred.
Jackson v. State, 684 So. 2d 1213, 1226 (Miss. 1996). Plain-error review may be invoked
where (1) a party failed to preserve an error for appellate review, and (2) a substantial right
is affected. A review under the plain-error doctrine is necessary when a party’s fundamental
rights are affected, and the error results in a manifest miscarriage of justice. Williams v.
State, 794 So. 2d 181, 187 (¶23) (Miss. 2001) (overruled on other grounds). Because the
right to due process and equal protection in this case affects a substantial right – specifically,
a right to a fair trial – plain-error review is appropriate.
A. Aggravated-assault Jury Instruction
8
The motion for a new trial had not been ruled upon when this case was initially
appealed; however, the Court has accepted this case in the interest of judicial economy and
addressed the issue of reading the indictment cited in Jones’s motion for a new trial. I will
address the weight of the evidence issue raised in the motion for a new trial and the jury
instructions under the plain-error doctrine.
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¶32.
“When considering a challenge to a jury instruction on appeal, we do not review jury
instructions in isolation; rather, we read them as a whole to determine if the jury was properly
instructed.” Milano v. State, 790 So. 2d 179, 184 (¶14) (Miss. 2001) (citation omitted). “[I]f
the instructions fairly announce the law of the case and create no injustice,” this Court will
not reverse. Id. I submit that the jury instructions given in this case coupled with statements
made by the trial judge confused the jury and impacted a fundamental right of Jones.
¶33.
The unnumbered aggravated-assault jury instruction states, in relevant part, that:
[I]f you believe from the evidence in this case beyond a reasonable doubt and
to the exclusion of every reasonable hypothesis consistent with innocence that:
(1)
On or about March 22, 2007, the defendants, Eddie Ray Jones and
Henry Taylor . . ., individually, or while aiding and abetting and/or
acting in concert with each other, did purposely, knowingly or
recklessly, under circumstances manifesting extreme indifference to the
value of human life, cause serious bodily injury to Camisha Cleveland,
and
(2)
said injury was caused by shooting into the street or traffic thereby
hitting Camisha Cleveland causing injury to the right side of her head
and/or her right ear,
then you shall find the defendants Eddie Ray Jones and Henry Taylor, guilty
of aggravated assault . . . .
(Emphasis added). The fault with this instruction is that the jury was required to find Jones
guilty, even if they found that Taylor had acted individually. Although the trial court
provided an instruction that you must find that each person committed the acts, it did not cure
the problem.
¶34.
Couple the aggravated-assault jury instruction with the fact that right before
instructing the jury, the trial judge explained to it: “[w]e’ve got three charges. [Taylor and
19
Jones] are charged with ag[gravated] assault, and that will be either guilty or not guilty for
two defendants, and then you’ve got an individual charge of possession of a firearm.”
(Emphasis added). Later, while reading the form-of-the verdict instructions, the trial judge
paused to explain that “[Taylor and Jones] are both charged with aggravated assault together
– well, in one indictment. Then they individually have possession charges of a firearm.”
¶35.
And there is more. After instructing the jury, the trial court, at the State’s request,
granted an aiding-and-abetting jury instruction. Reading the jury instructions together does
not cure the problem here. Even if the jury determined that Taylor had acted alone, the jury
instructions negate any opportunity for the jury to acquit Jones of aggravated assault.
¶36.
Further, the inconsistent verdicts become relevant when reviewing whether the jury
was properly instructed. This inconsistency exhibits the injustice done to Jones by jury
instructions that did not announce the applicable law; the jury never received any clarity on
whether Jones could be acquitted. If the jury believed Sellers’s statement that she saw Jones
with a gun, the jury would have convicted him of possession of a firearm. The improper jury
instructions coupled with the trial judge’s confusing comments on the applicable law warrant
a new trial.
¶37.
The United States Supreme Court has stated that an error of constitutional dimension
is not harmless if “there is a reasonable possibility that [it] might have contributed to the
conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). The State must prove “beyond
a reasonable doubt that the error complained of did not contribute to the verdict obtained.”
Chapman v. California, 386 U.S. 18, 24 (1967). In the present case, the possibility of
prejudicial impact is present; therefore, I conclude that the trial judge’s comments coupled
20
with the jury instructions were not harmless errors. Accordingly, if the judgment is not
reversed and rendered, I would reverse the aggravated-assault conviction and remand for a
new trial.
B. Weight of the Evidence
¶38.
“When reviewing a denial of a motion for a new trial based on an objection to the
weight of the evidence, [this Court] will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). This Court must consider the
evidence in the light most favorable to the verdict. Id. “The motion . . . is addressed to the
discretion of the court . . . . [A] new trial should be invoked only in exceptional cases in
which the evidence preponderates heavily against the verdict.” Id. (citation omitted).
¶39.
It is the province of the jury as the ultimate fact-finder to accord the weight and
credibility to the evidence. Neal v. State, 451 So. 2d 743, 758 (Miss. 1984). However, there
must be some evidence to support the verdict. In this case, none was presented.
¶40.
The separate accounts of the events of the day of the incident vary to some degree
among the witnesses; however, no witness provided any testimony that Jones was heard or
seen providing any aid, encouragement, or assistance to Taylor on the day in question. I have
searched the record to find even an inference from one of the witnesses that Jones
encouraged or incited Taylor to participate in some illegal activity on that day or any other
day.
¶41.
Considering the evidence in the light most favorable to the verdict, Jones’s conviction
cannot stand. As discussed above, the State provided no evidence that Jones either shot
21
Cleveland, which would make him individually liable, or that he aided and abetted and/or
acted in concert with Taylor in shooting Cleveland. Because allowing Jones’s conviction to
stand would sanction an unconscionable justice, minimally this Court should reverse and
remand for a new trial, even though I firmly believe that the most appropriate action would
be to reverse Jones’s aggravated-assault conviction and render a judgment of acquittal as
heretofore stated.
IRVING, P.J., JOINS THIS OPINION.
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