Jones v. State, 93-KA-00207-SCT

• Decision Date: 16 November 1995
• Docket Number: No. 93-KA-00207-SCT,93-KA-00207-SCT
• Citation: 669 So.2d 1383
• Parties: Ronald Emery JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1383

669 So.2d 1383

Ronald Emery JONES v. STATE of Mississippi.

No. 93-KA-00207-SCT.

Supreme Court of Mississippi.

Nov. 16, 1995.

Rehearing Denied March 14, 1996.

Charles C. Jacobs, Jr., Cleveland, David O. Bell, Oxford, for Appellant.

Michael C. Moore, Attorney General, Jackson, Scott Stuart, Sp. Asst. Attorney General, Jackson, for Appellee.

EN BANC.

PRATHER, Presiding Justice, for the Court:

This case involves an armed robbery that occurred as employees of Kinney's Shoes in the Oxford Mall attempted to make their night deposit at the First National Bank in Oxford, Mississippi. For his involvement in this crime, Ronald Emery Jones was convicted of armed robbery and sentenced by the Lafayette County Circuit Court to twenty years in prison, with eleven years suspended, without eligibility for parole. On appeal, Jones raises the following issues:

A. WHETHER THE TRIAL JUDGE WAS ACTIVELY INVOLVED IN THIS CASE ON BEHALF OF THE PROSECUTION AND EXHIBITED A BIAS TOWARD THE DEFENDANT SUCH AS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL AND OF HIS CONSTITUTIONAL RIGHTS?

B. WHETHER LAWRENCE SWINDOL WAS INVOLVED IN THIS ALLEGED ARMED ROBBERY SO THAT THERE WAS NO ARMED ROBBERY ACCORDING TO THE STATUTE?

C. WHETHER THE PROSECUTING ATTORNEY COMMITTED ERROR BY COMMENTING ON THE FAILURE OF THE DEFENDANT TO TESTIFY?

D. WHETHER THE COURT ERRED IN ITS FAILURE TO GRANT A CONTINUANCE AS REQUESTED BY THE DEFENSE COUNSEL WHEN THE STATE FAILED TO FURNISH THE RECORDED STATEMENT OF WITNESS AARON THOMAS UNTIL THE DAY BEFORE TRIAL?

E. WHETHER THE SENTENCE PRONOUNCED BY THE COURT ON RONALD JONES WAS TOO SEVERE AND HARSH AND AMOUNTED TO CRUEL AND UNUSUAL PUNISHMENT?

This Court finds Jones' appeal to be meritless and affirms the judgment of the trial court.

I. FACTS

At approximately 10:00 p.m., March 30, 1991, three employees of Kinney's Shoes in the Oxford Mall went to the First National Bank in Oxford to make their nightly deposit. An armed assailant took the deposit, which amounted to over $2,000.

Three men entered guilty pleas pursuant to plea agreements in this case. Kinney's store manager, Johnny Chinn, pled guilty to conspiracy to commit armed robbery. In exchange for the plea, Chinn received a sentence of five years in prison, and he agreed to testify against Jones. Michael Vincent, who actually held the gun and took the money, pled guilty to robbery with a weapon. He was sentenced to serve three years without parole, and he agreed to testify against Ronald Jones. Aaron Thomas, the driver of the getaway car, pled guilty to accessory after the fact of the crime of armed robbery. He agreed to testify truthfully and cooperate with the State in the prosecution of the armed robbery cases, in exchange for a sentence of five years of supervised probation.

The record reflects that all three of the convicted accomplices (Vincent, Chinn, and Thomas) knew Jones and that Jones had approached each of them and asked if they would like to participate in the planned robbery. In addition, Jones had previously managed a similar Kinney's, where he had worked with two of the accomplices.

On the night of the incident, Jones rode from Memphis, Tennessee to Oxford. He traveled with the assailant (Vincent) and the driver of the getaway car (Thomas) in the assailant's white Chevrolet Chevette. Once in Oxford, Jones went to the Kinney's Shoes and asked the Store Manager (Chinn) when he was getting off work, who usually carried the bank bag, how much business Kinney's had done that day, and where the bank was located.

After closing that night, the Kinney's manager, assistant manager, and another employee left to take the deposit to the bank. The assistant manager and the other employee noticed an occupied white Chevette in the mall parking lot; the car had "five-point" rims and an unusual antenna. Upon arrival at the bank, the employees were approached by an armed man who took the money bag from the assistant manager. Afterwards, the assistant manager and the other employee saw the white Chevette leave the scene.

The Kinney's employees then called the police. Shortly thereafter, the white Chevette was apprehended by the Mississippi Highway Patrol, between Oxford and Batesville. Aaron Thomas had been driving, Michael Vincent was in the passenger's seat, and Ronald Jones was in the rear seat on the passenger's side. The money was later found behind the assailant (Vincent's) zipper. A gun and two holsters were retrieved from the car. The driver (Thomas) testified that there had been two guns in the car that night and that they both belonged to him. Neither a gun nor money was found on Appellant Jones' person. The assistant manager and the other Kinney's employee later identified the Chevette as the vehicle they had seen at the mall and the bank.

II. LEGAL ANALYSIS

A. WHETHER THE TRIAL JUDGE WAS ACTIVELY INVOLVED IN THIS CASE ON BEHALF OF THE PROSECUTION AND EXHIBITED A BIAS TOWARD THE DEFENDANT SUCH AS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL AND OF HIS CONSTITUTIONAL RIGHTS?

Jones contends that the trial judge demonstrated bias in the following ways: (1) that the trial judge improperly interjected himself during the testimony of Aaron Thomas; (2) that the trial judge incorrectly ruled on objections; (3) that the trial judge allowed Chinn and Vincent to remain in the courtroom during closing arguments. Jones also contends that the trial judge was biased in his sentencing; however, the sentence (as discussed later in this opinion) was within the statutory guidelines and did not demonstrate bias.

1. Testimony of Aaron Thomas

Prior to trial, Thomas, the driver of the getaway car, gave two statements to the police. One was apparently given the night of the robbery, March 30, 1991; the other was given after his plea bargain on April 7, 1992. At trial, Thomas could not remember several of the comments he made in his April 7, 1992 statement.

During the course of direct examination, the defense counsel objected to the prosecution's leading of Thomas. In response, the prosecutor stated that the witness was "obviously a hostile witness." The trial judge then excused the jury and reminded the witness of the terms of his plea bargain. ¹

Jones now contends that the trial judge improperly interjected himself into the proceedings by making these comments to Thomas. Basically, Jones' argument is that it was apparent to the jury that the judge "straightened Thomas out" while they were gone. Jones contends that, after the jury came back in, Thomas "went right along with his previous statement of April 7, 1992. Of course, this was obvious to the jury."

This Court has "made clear that [it] will not hesitate to reverse where the trial judge displays partiality, becomes an advocate, or, in any significant way, conveys to the jury the impression that he has sided with the prosecution." Layne v. State, 542 So.2d 237, 242 (Miss.1989). Thus, the question in the case at hand is whether the trial judge demonstrated partiality in favor of the prosecution.

In support of his argument, Jones cites West v. State, 519 So.2d 418 (Miss.1988) and Nichols v. Munn, 566 So.2d 1132 (Miss.1990). ² Clearly, these cases are distinguishable from the case sub judice. Both West and Nichols involved statements made in the presence of the jury. There are no such statements here. The Court's discussion with Thomas took place outside of the jury's hearing; therefore, the risk of the judge unduly influencing the jury in this case would be "nonexistent." See Foster v. State, 639 So.2d 1263, 1291 (Miss.1994).

2. The rulings on the objections

Jones further contends that the trial judge demonstrated bias in favor of the prosecution by sustaining the prosecution's objections to the form of some of the defense counsel's questions. Jones' argument appears to be that the judge's rulings on these objections demonstrated partiality toward the prosecution. However, the record reflects that the judge did not rule that the defense counsel could not ask the questions. He simply ruled that the questions would have to be rephrased (apparently because they called for legal conclusions). Thus, there is nothing in the disputed rulings which would indicate bias on the part of the judge.

3. The presence of Chinn and Vincent in the courtroom

Jones also argues that the trial judge erred by allowing the convicted accomplices, Chinn and Vincent, to remain in the courtroom during closing arguments. The record reflects that defense counsel objected to their presence and pointed out that the inmates were shackled and that they were identified as inmates by the emblems on the back of their shirts. It appears that the trial judge addressed the concerns of the defense counsel by having the inmates un-shackled. The judge indicated that they were in civilian clothes, and he made Vincent and Chinn remain seated so that the M.D.O.C. emblem on their backs did not show. Thus, there is no merit in Jones' argument on this point, particularly when Chinn and Vincent had testified that they had pled guilty and that they were serving prison sentences in connection with this crime.

B. WHETHER LAWRENCE SWINDOL WAS INVOLVED IN THIS ALLEGED ARMED ROBBERY SO THAT THERE WAS NO ARMED ROBBERY ACCORDING TO THE STATUTE?

The Mississippi statute on armed robbery provides as follows:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment of life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

Miss.Code Ann. §...