Jones v. State

• Citation: 710 So.2d 870
• Decision Date: 16 April 1998
• Docket Number: No. 95-KA-01313-SCT,95-KA-01313-SCT
• Parties: Bobbie JONES and Latroy Daniels v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 870

710 So.2d 870

Bobbie JONES and Latroy Daniels v. STATE of Mississippi.

No. 95-KA-01313-SCT.

Supreme Court of Mississippi.

April 16, 1998.

Raymond L. Wong, Boyd P. Atkinson, Cleveland, for appellants.

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

Before PITTMAN, P.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

McRAE, Justice, for the Court:

¶1 Appellants Bobbie Jones and Latroy "Duke" Daniels were convicted of manslaughter and murder, respectively, in the 1995 shooting death of Joseph "Faygo" McClenton. Jones and Daniels appealed this decision based on several assignments of error. Finding no merit in any of the appellants' assignments of error, we affirm.

I. BACKGROUND

¶2 On Friday, May 19, 1995, Jones and her boyfriend, Laten Hemingway, traveled to Shelby, Mississippi. Upon arrival, they stopped at Pablo's, moved on to the Do-Drop Inn, which is about one block from Pablo's, and eventually ended up back at Pablo's. Other patrons who were at Pablo's included Gloria "Bowley" Green, Roosevelt "Rooster" Funchess, and Bessie Anderson.

¶3 Daniels, the son of Bobbie Jones, was also in Shelby on May 19, 1995, visiting friends and patronizing various nightclubs. Eventually Daniels found his mother and her boyfriend at Pablo's. Daniels testified that he borrowed fifty cents from his mother to buy ice for drinks. He said that afterward, he left to retrieve a .25 caliber pistol which he kept under a bridge about 200 yards from where McClenton was shot later that evening.

¶4 Apparently, Daniels, McClenton and others were drinking alcohol and smoking marijuana on the night of the shooting. Daniels showed McClenton the gun, and McClenton fired the gun into the air. Allegedly, this act started an argument between the two. Daniels testified that he sent the gun back by a friend, Kelvin "Kiddo" Green (one of Gloria Green's sons), and had Green put the gun in Hemingway's car.

¶5 Later that night, Daniels and McClenton again started arguing about the shooting of the gun by McClenton. Eventually they began pushing each other. Daniels then went to the car, opened the trunk and retrieved the gun. Rosalyn "Mossie" Britton who had been outside the Do-Drop Inn, came into Pablo's to inform Gloria Green that Green's sons, Daniels, and McClenton were about to get into a fight. Green left Pablo's to get her own sons. Jones left a few minutes later to check on Daniels. She walked down the sidewalk to the Do-Drop Inn. McClenton told Jones that there was nothing to the fight between him and Daniels.

¶6 Meanwhile, Daniels was brandishing the gun. Gloria Green tried to hold Daniels back, but Daniels broke away from her. He approached McClenton, getting within ten or twelve feet of him. Daniels told others nearby to move. Then he fired the pistol, striking McClenton in the right temple and killing him instantly. Daniels threw down the gun and ran to the police station. At that time, Jones, who was near the fence next to the Do-Drop Inn, fell to the ground and began crying hysterically.

¶7 On September 26, 1995, the grand jury of Bolivar County returned an indictment against Jones and Daniels for the McClenton murder. The defendants were tried jointly for the crime on October 23, 1995. The jury returned verdicts on October 25, 1995, finding Jones guilty of manslaughter and Daniels guilty of murder. Jones subsequently filed a motion for JNOV/new trial, which was summarily denied by the trial judge. The jury then sentenced Jones to sixteen years with eight years suspended upon completion of the first eight years. Daniels received life imprisonment.

¶8 It is from these convictions and sentences that Jones and Daniels appeal to this Court. On appeal, each defendant filed a separate brief.

II. JONES'S ASSIGNMENTS OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT REQUIRING THE PROSECUTION TO TURN OVER THE PRIOR STATEMENT OF LATEN HEMINGWAY TO THE DEFENSE WHEN THE PROSECUTION'S CROSS EXAMINATION IMPEACHED LATEN HEMINGWAY WITH HIS PRIOR INCONSISTENT STATEMENT.

¶9 Jones first alleges that the trial court should have required the prosecution to turn over a previously taped statement of Laten Hemingway which was used to impeach him at trial. The State responds that the issue is procedurally barred because Jones did not object or move for continuance or mistrial. Additionally, the State argues that Jones failed to request the statement during Hemingway's examination, and when she did, she did not specify which witness statements she wanted.

¶10 Jones relies on Rule 613(a) of the Mississippi Rules of Evidence, which requires that a prior statement used to examine a witness shall be shown or disclosed to opposing counsel. "In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel." Miss. R. Evid. 613(a). Jones alleges that the content of Laten Hemingway's taped statement to the prosecution was not disclosed to the defense in criminal discovery. However, Rule 613 is not concerned with discovery. The comment to the rule states, "The provision allowing disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary." Miss. R. Evid. 613 cmt.

¶11 Neither party offers substantive precedent for their respective positions. Jones cites Williams v. State, 595 So.2d 1299, 1307 (Miss.1992), wherein the defendant Williams was required to tender the prior inconsistent statements of a prosecution witness to counsel opposite prior to the cross-examination. However, this Court noted that "this was but a formality, as the statements were ones [the prosecution witness] had previously given law enforcement officers." Id. Here the defendant alleges that the content of Hemingway's taped statement to the prosecution was not disclosed to the defense in discovery. However, the defense never objected at trial to the use of the statement or the fact that the defense had no knowledge of the statement. Hemingway's cross-examination, from the very beginning, was based on his previous statement to the prosecution.

¶12 Not until the statement of William Crocker did Jones's attorney describe the situation to the trial court. The State took statements of five witnesses whose identities had been disclosed to them by the defense. Then Jones's attorney alleged that he had not been provided copies of the statements and demanded that the transcribed statements be turned over to him. The prosecution and the trial court explained that the defense would only be entitled to the statements if they would be used in the prosecution's case in chief. When the request for the statements was made by the defense, the prosecution had already ended its case-in-chief.

¶13 Clearly, the defense should have been allowed to review the statement used to impeach, as provided in Miss. R. Evid. 613(a). However, the defense also should have made the correct objection at the time impeachment was begun. Nonetheless, a review of Hemingway's testimony shows that the attempt at impeachment by the prosecution basically was a repetition of the witness's previous testimony. Since nothing new was gleaned from the use of the previously recorded statement, we find that the trial court's error in failing to make the prosecution give the defense a transcribed statement was harmless.

THE PROSECUTION FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT BOBBIE JONES ACTED IN CONCERT OR AIDED AND ABETTED LATROY DANIELS.

¶14 Jones alleges that the prosecution failed to prove beyond a reasonable doubt the requirement of a common design between Bobbie Jones and Latroy Daniels. Jones claims that she neither provided Daniels with the gun nor said or did anything to encourage Daniels to shoot and kill McClenton. The State responds that the proof was sufficient to support a jury finding that Jones both aided and encouraged Daniels in shooting McClenton.

¶15 In the recent case of Hoops v. State, 681 So.2d 521, 533-34 (Miss.1996), this Court, quoting Sayles v. State, 552 So.2d 1383, 1389 (Miss.1989), stated that " '[a]ny person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an 'aider and abettor' and is equally guilty with the principal offender.' " The primary distinction between the accessory-before-the-fact and an aider and abettor is the actual or constructive presence of the party. If a person was actually or constructively present at the offense, that person is an aider and abettor, based on his participation. Pleasant v. State, 701 So.2d 799, 803 (Miss.1997). Therefore, in order to find Jones guilty of McClenton's murder, the jury had to find, beyond a reasonable doubt, that Jones actually shot McClenton or that Jones aided, counseled or encouraged others in the commission of McClenton's murder. See Hooker v. State, No. 92-KA-00242-SCT slip op. at 4, --- So.2d ----, ---- (Miss. Mar.21, 1996).

¶16 Jones cites the case of Daniels v. State, 293 So.2d 19, 20 (Miss.1974) for the proposition that the prosecution failed to prove the required element of common design between Jones and Daniels. However, no proof of common design is required to establish murder by aiding and abetting, with which Jones was charged. "Common design" is required when defendants are charged with conspiracy. See Jones v. State, 567 So.2d 1189, 1191 (Miss.1990). Neither defendant was charged with conspiracy in this case, so the argument avails Jones nothing.

¶17 Jones also cites the case of Swinford v. State, 653 So.2d 912, 915 (Miss.1995) to support her contention that the State did not prove that her acts unmistakably evinced a design to encourage, incite, or approve of the crime. In that case, Swinford was present at the time of the...