Jones v. State, 50944

• Citation: 381 So.2d 983
• Decision Date: 30 January 1980
• Docket Number: No. 50944,50944
• Parties: Larry JONES v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 983

381 So.2d 983

Larry JONES v. STATE of Mississippi.

No. 50944.

Supreme Court of Mississippi.

Jan. 30, 1980.

Rehearing Denied April 2, 1980.

Morris & Walton, Charles E. Morris, Jr., C. Wesley Walton, Biloxi, for appellant.

A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PATTERSON, Chief Justice, for the Court on the Guilt-Determining Phase.

WALKER, Justice, for the Court on the Sentence-Determining Phase.

Larry Jones appeals from a second conviction of capital murder and sentence of death entered in the Circuit Court of the Second Judicial District of Harrison County.

We reversed Jones' first conviction and death sentence in Jones v. State, 342 So.2d 735 (Miss.1977), and directed a new trial following Jackson v. State, 337 So.2d 1242 (Miss.1976).

THE GUILT PHASE OF TRIAL

The state's case centers upon the testimony of J. D. Reddix, hereinafter J. D., who testified that on the morning of December 2, 1974, his brother Willie Reddix, hereinafter Willie, and Larry Jones persuaded him to drive them to downtown Biloxi. J. D. testified that at the time he had no knowledge of any criminal design of the others. After stopping for gas, J. D. proceeded with Willie and Larry Jones, hereinafter Jones, to downtown Biloxi where he parked his gray Cadillac in the parking lot of a shoe store. J. D. testified Willie and Jones then left walking in the general direction of Weinburger's store while he remained in the car. J. D. recalled that Jones at the time was wearing a pair of combat boots.

Orvel McGee was in the same downtown area on December 2, 1974. After identifying a photograph of J. D.'s car, he testified that at about 11:15 a. m. he saw one man park the car and two others get out of it and walk in the direction of Weinburger's store. McGee observed that one of the persons leaving the car wore combat boots. Shortly thereafter, he saw them return and noted the person wearing combat boots was carrying a footlocker. He could not identify Jones as one of the two men he saw leave and later return to the car.

Shortly before noon on December 2, 1974, Ray Real, a store manager, observed a man carrying a footlocker away from Weinburger's J. D. stated that Jones was carrying a footlocker when he returned to the car. A state witness, Lula Mae Bell, aunt of J. D. and Willie, at first testified she could not remember having seen her nephews or Jones in downtown Biloxi on the day of the homicide. However, on direct examination the following day she recanted, admitting that she had "lied" earlier in her testimony, and explained by stating her life had been threatened in the interest of Jones. She then testified that she did see Willie and Jones leave J. D.'s car and walk toward Weinburger's store on the day of the homicide and that Jones was wearing combat boots.

store. At about this time Preston Sullivan testified he entered the store and found Arthur Weinburger, proprietor, lying in an office doorway amid a pool of blood. A surgeon gave evidence that Weinburger died later in the day as the result of blows to his head.

Annie Lee Reddix, mother of Willie and J. D., testified that on December 2, 1974, J. D., Willie and Jones left her house in J. D.'s car. When they returned, Jones stored the footlocker which he had in her house, changed the combat boots he was wearing to tennis shoes, and later departed, leaving the boots.

On December 3, 1974, pursuant to warrant, detectives searched the house of Annie Lee Reddix. They discovered a footlocker and a pair of combat boots. The footlocker was identified as the one taken from Weinburger's store, and the boots were found to be stained with human blood of an undeterminable type. Lerline Blancq, manager of Weinburger's store, testified that approximately $600 had been taken in the robbery and positively identified the merchandise found in the footlocker as belonging to Weinburger's store.

By his first, second, and sixth assignments of error, Jones raises the sufficiency of the evidence to support the jury's guilty verdict. He argues that only two witnesses, Lula Mae Bell, an admitted perjurer, and J. D. Reddix, an admitted accomplice, linked him to the crime.

We conclude the state presented circumstantial evidence sufficient to support the jury verdict of guilty. Under our authorities Lula Mae Bell's and J. D. Reddix's testimony is competent.

Lula Mae Bell was presumptively innocent of perjury when she testified and was therefore a competent witness. Isonhood v. State, 274 So.2d 685, 690 (Miss.1973). As for J. D. Reddix, his status as an accomplice affected the weight, not the competency of his testimony. Thomas v. State, 340 So.2d 1 (Miss.1976); Black v. State, 336 So.2d 1302 (Miss.1976); Fleming v. State, 319 So.2d 223 (Miss.1975). The jury had before it exhaustive attempts by the defense to impeach these witnesses and by the state to rehabilitate them. The trial court, in our opinion, properly left to the jury the weight and worth to be accorded their testimony. From the entirety of the record and particularly in view of the corroborating circumstances evidenced by disinterested witnesses, we think that reasonable minds could have found it to have been beyond reasonable doubt that Jones participated in the robbery resulting in Weinburger's death.

As a confessed accessory after the fact to the murder with which Jones was charged, J. D. was an accomplice. Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921). Therefore, his testimony must be considered with caution. Feranda v. State, 267 So.2d 305 (Miss.1972). However, it is also established that an accused may be convicted on the uncorroborated testimony of an accomplice. Rich v. State, 322 So.2d 468 (Miss.1975); Moore v. State, 291 So.2d 187 (Miss.1974); Young v. State, 212 Miss. 460, 54 So.2d 671 (1951). Moreover, J. D.'s testimony appears consistent with the corroborating testimony to which other witnesses testified.

State witnesses Orvel McGee, Ray Real, Preston Sullivan, Lerline Blancq, and others, together established that at about midday on the day of the homicide, two empty-handed black men, one wearing combat boots, went in the direction of Weinburger's On cross-examination of J. D., an inconsistency was established between his current testimony concerning the color of the pants worn by Jones on the day of the homicide and his testimony on the same matter given at a previous hearing. J. D. acknowledged the inconsistency, but offered no explanation. An additional inconsistency was brought out on cross-examination. J. D. had apparently told the Biloxi police that one "Royce" was with them on the day of the homicide, but the evidence was inconclusive as to whether "Royce" or "Roy," ¹ as he was later referred to, accompanied the participants in the crime to the downtown area.

store from J. D.'s parked automobile. Orvel McGee recalled seeing a man wearing combat boots return with a footlocker to the car a few minutes after he left it. Later a footlocker was carried by Jones into Annie Lee Reddix's house, where it was subsequently discovered and identified as stolen from Weinburger's store, and bloodstained boots were also found. In sum, the record contains more than "slight" corroborative evidence which we held sufficient to sustain the conviction on an accomplice's testimony in Lifer v. State, 189 Miss. 754, 199 So. 107 (1940), and cases cited therein.

We do not think the cross-examination concerning the color of the pants worn by Larry Jones and the company of Roy destroyed J. D.'s testimony as a matter of law. The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory and sincerity. The entire sequence of examination suggests that while Roy may have been "with them" sometime on December 2, 1974, he did not accompany the criminal participants to downtown Biloxi. Under the circumstances, we think leaving the question of credibility to the jury was proper and that appellant's conviction cannot be said to be contrary to the weight of the evidence. See Kinney v. State, 336 So.2d 493 (Miss.1976); Black v. State, 336 So.2d 1302 (Miss.1976); Fleming v. State, 319 So.2d 223 (Miss.1975); Null v. State, 311 So.2d 654 (Miss.1975).

Appellant next contends, "The record does not expressly show that this appellant was actively engaged in an assault on the victim in the course of the robbery set out by all the evidence in the record." We agree the record does not conclusively establish which of the two co-felons, Willie Reddix or Larry Jones, the appellant, actually wielded the blows causing Weinburger's death. However, doubt concerning the precise role of the appellant in the homicide does not upset the jury's verdict. The indictment alleges that Larry Jones, together with his co-indictees Willie Reddix and J. D. Reddix, participated in an armed robbery which resulted in the death of Arthur Weinburger, a human being. The statutory subsection proscribing appellant's conduct, Mississippi Code Annotated section 97-3-19(2)(e) (1972), appears in the indictment. It designates as capital murder a killing "done with or without any design to effect death, by any person engaged in the commission of the crime of . . . robbery . . . ."

This language renders the factual question of which of two co-felons acted as the efficient cause of the death unnecessary to the verdict in the guilt-determining phase. It is enough that the evidence shows the willing participation of the accused in a robbery in furtherance of which a death resulted. See Price v. State, 362 So.2d 204 (Miss.1978); McNeer v. State, 228 Miss. 308, 87 So.2d 568 (1956); Carrol v. State, 183 Miss. 1, 183 So. 703 (1938); Woodward v. State, 166 Miss. 596, 143 So. 859 (1932); Fisher v. State, 150 Miss. 206, 116 So. 746 (1928); cf. Miss.Code Ann. § 97-1-3 (1972).

As we have said, the evidence sufficiently demonstrates...