Jones v. State

• Decision Date: 28 March 1979
• Docket Number: No. 50727,50727
• Citation: 368 So.2d 1265
• Parties: Louis JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1265

368 So.2d 1265

Louis JONES v. STATE of Mississippi.

No. 50727.

Supreme Court of Mississippi.

March 28, 1979.

John L. Hatcher, Cleveland, for appellant.

A. F. Summer, Atty. Gen., by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

SMITH, Presiding Justice, for the Court:

In this case Louis Jones and Clarence Hawkins were indicted jointly for grand larceny in connection with the theft of a tractor. Hawkins entered a plea of guilty, but sentencing was deferred pending the trial of Jones. Jones pled not guilty and was tried in the Circuit Court of Sunflower County, convicted largely upon the testimony of Hawkins, and sentenced to a term of three (3) years imprisonment.

These facts relating to the larceny are undisputed: Hawkins, who lived in Indianola, rented a U-Haul van-type truck. He drove this truck to Cleveland where the tractor, which was the subject of the larceny, was loaded into the van. Hawkins then drove the truck, containing the tractor, to Arkansas. After spending the night at a motel, the next day Hawkins sold the tractor for $7,000.00 In connection with the sale, Hawkins executed an affidavit of ownership and a bill of sale to the purchaser. Hawkins received the purchaser's check for $7,000.00 in payment for the tractor. Afterwards, Hawkins returned to Mississippi and cashed the check.

According to Hawkins, Jones' role in the larceny was as follows: Hawkins had met Jones in January, 1977, and Jones had given him a card with his name and telephone numbers on it. The crime was committed on February 20, 1977. Hawkins testified that he had rented the van-type truck in Indianola because Jones had telephoned him and asked him to do so. He said that he brought the truck to Cleveland and left it on a parking lot near a hospital pursuant to directions given him by Jones in the telephone conversation. According to Hawkins, he had given Jones the keys and, when he again picked up the truck the tractor was in it, presumably placed there by Jones. Jones' further participation, Hawkins said, had consisted in giving him, Hawkins, the blank printed form of bill of sale which Hawkins used in selling the tractor. Hawkins said he gave Jones $4,500.00 of the $7,000.00 check received by Hawkins and which Hawkins had cashed, keeping only $2,500.00.

Jones emphatically denies having participated in any way in Hawkins' felonious activities. Moreover, the testimony of two witnesses, at least one of whom must be said to have had no interest in the case, placed Jones, at the critical time, at a motel in Cleveland so that he could not have been at the place at which Hawkins' testimony would have required him to be. The identification of Jones by this witness was positive and circumstantial.

There is no substantial or significant corroboration of Hawkins' testimony incriminating Jones. A witness, one Williams, placed on the stand by the State, testified that he lived "out in the country" from Cleveland on a dead end road, and on the night in question, had learned that a van-type truck was in the ditch in front of his house. Williams said that he had not known the driver of the truck, but that a man in a green station wagon had stopped and that he, Williams, had pulled the truck out of the ditch and the man who had arrived in the green station wagon had paid him $10.00. On direct examination he was asked to identify Jones as the driver of the green station wagon and he said that the man in the station wagon had been Jones. Williams testified that the incident had occurred shortly after 10:00 at night, that a "yard light" furnished the only illumination and that it was "pretty dark." He admitted that he had never seen Jones before and only saw him for a few moments on the night in question. He said that the van had not contained a tractor when he saw it, but that he remembered it did not have a "local" tag.

On cross-examination, however, Williams frankly admitted that the officers had taken him on a search specifically to find Jones, taking him to Jones' place of business, to determine if he could identify him as the man in the green station wagon. With this suggestive identification procedure as a background, Williams, on direct examination, undertook to say that Jones had been the man. However, on cross-examination, he admitted, in all candor, that he was not sure of the identification of Jones and described his "identification" of Jones as follows:

"Q. ... I believe you stated that you were reasonably sure, or something to that effect, although not absolutely positive.

A. Yes.

Q. That's what you told me?

A. Yes.

Q. That out of all the people you have been shown, that this one came the closest?

A. Yes."

Apart from the above, there was no evidence capable of supplying reasonable corroboration of Hawkins' statements involving Jones in the crime.

The only other items supposedly corroborative of Hawkins consisted of a telephone call from a barbeque place in Indianola to a pizza hut in Cleveland, and another telephone call from Jitney, Jr. in Indianola to Coleman's Barbeque in Cleveland, and testimony regarding some ramps allegedly used by Hawkins. These items were not tied in with Jones with sufficient clarity or certainty as to render them competent and their prejudicial effect far outweighs any probative value they might have had.

The case against Jones, a man of no previous criminal record, rests then upon the testimony of Hawkins, a convicted felon awaiting sentence following his plea of guilty, which is flatly contradicted by Jones and two other witnesses. At every point from beginning to end, where there is corroboration, it was Hawkins himself who acted. His statement that everything he did was in compliance with a request from Jones, a man he had known only two or three weeks, strains credulity. It is noted that the points at which Hawkins said Jones was involved had the virtue, from Hawkins' standpoint, of being such as could not easily be disproved. Every fact capable of being proved, other than by Hawkins' own testimony, showed Hawkins acting alone.

Among other grounds assigned for reversal, it is contended on behalf of Jones that the trial court erred in denying his request for a new trial which was based upon the ground that the verdict was against the weight of the evidence.

Throughout the history of criminal jurisprudence in Mississippi, the sufficiency of evidence to support a conviction has been reviewed by this Court where there has been (1) a request for peremptory instruction, and (2) a motion has been made for a new trial upon the ground that the guilty verdict was against the weight of the totality of the evidence. A succinct statement of the extent and nature of the review in such cases appears in Roberson v. State, 257 So.2d 505 (Miss.1977):

We have repeatedly pointed out that the trial judge in passing upon a motion for a directed verdict, or a peremptory instruction, must assume that all the evidence for the State is true, and must assume that all the reasonable inferences that may be drawn from the evidence by the jury of reasonable men, is true, and if, from all the testimony, there is enough in the record to support a verdict, the motion for a peremptory instruction should be overruled. Redwine v. State, 149 Miss. 741, 115 So. 889 (1928).

(2) This rule does not, however, preclude the judge from considering all the testimony for the State and defendant on a motion for a new trial upon the ground that the verdict of the jury is against the weight of the evidence. McLendon v. State, 187 Miss. 247, 191 So. 821 (1939).

257 So.2d at 507.

In reviewing the totality of the evidence in the case now before the Court, it has been pointed out that under the rule in Mississippi, long established and consistently adhered to, the testimony of Hawkins, the convicted accomplice and felon, must be viewed with great caution and suspicion. Where it is uncorroborated, it must also be reasonable, not improbable, self-contradictory or substantially impeached. Thomas v. State,340 So.2d 1 (Miss.1976); Black v. State, 336 So.2d 1302 (Miss.1976); Hutchins v. State, 220 So.2d 276 (Miss.1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953); Young v. State, 255 So.2d 318 (Miss.1971); Pegram v. State, 228 Miss. 860, 89 So.2d 846 (1956); Perdue v. State, 199 Miss. 624, 25 So.2d 185 (1946); Lyle v. State, 193 Miss. 102, 8 So.2d 459 (1942); Nichols v. State, 174 Miss. 271, 164 So. 20 (1935).

In Burks v. United States , 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, decided June 14, 1978, the United States Supreme Court re-examined the rule which had hitherto existed that where a motion was made for a new trial on the basis of insufficiency of the evidence to support a conviction, the appellate court, upon sustaining the motion, might remand the case for another trial. Burks had been tried in a district court on a charge of having robbed a federally insured bank by using a dangerous weapon. Burks interposed as his defense a claim that he had been insane at the time, placing upon the prosecution the burden of proving his sanity. To meet this burden, the prosecution offered two experts, one of whom testified that Burks was not mentally ill and the other gave an ambiguous answer to the question of whether Burks had been capable of conforming his conduct under the law. All the other testimony offered to prove that Burks had been sane consisted of lay testimony that he had appeared to be capable of functioning normally at the time of the offense. Following his conviction, Burks moved for a new trial upon the ground that the evidence was insufficient to support the verdict. The motion was denied by the district court. The Court of Appeals, however, agreed that the evidence had been insufficient to support the verdict and reversed Burks' conviction. The Court of Appeals, rather than terminating the case against Burks, remanded it to the district court for determination of whether Burks'...