Jones v. State

• Decision Date: 14 June 2012
• Docket Number: No. S–11–0073.,S–11–0073.
• Citation: 2012 WY 82,278 P.3d 729
• Parties: Charles Edward JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

278 P.3d 729

2012 WY 82

Charles Edward JONES, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0073.

Supreme Court of Wyoming.

June 14, 2012.

Representing Appellant: Diane Lozano ^*, State Public Defender; Tina N. Olson ^*, Appellate Counsel; Kirk A. Morgan^*; and Janae E. Ruppert, of Woodhouse Roden, LLC. Argument by Ms. Ruppert.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage; Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Sean C. Chambers, Senior Assistant Attorney General; and John Guyton Knepper, Senior Assistant Attorney General. Argument by Mr. Knepper.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

HILL, Justice.

[¶ 1] Appellant Charles Edward Jones (Jones) robbed and killed Adonnis Whitehead (Whitehead) on July 27, 2009, during a party at a Cheyenne residence. A jury convicted Jones of aggravated robbery and first-degree murder. On appeal, Jones argues that the trial judge erroneously instructed the jury, that there was insufficient evidence to convict him, and that the prosecutor committed cumulative error. We will affirm.

[¶ 2] Jones was charged with one count of first-degree murder in violation of Wyo. Stat. Ann. § 6–2–101(a) (LexisNexis 2011), one count of aggravated robbery with a deadly weapon in violation of Wyo. Stat. Ann. § 6–2–401(c)(ii) (LexisNexis 2011), and one count of conspiracy to commit robbery in violation of Wyo. Stat. Ann. § 6–1–303 (LexisNexis 2011). On September 21, 2009, he entered a plea of not guilty to each count and trial was set for January 19, 2010. The district court then began to act upon a series of motions, including the granting of Jones' motion for a new attorney and a subsequent motion for continuance. A jury trial was conducted on October 19–22 and October 25, 2010.

[¶ 3] At trial the State dismissed the conspiracy to commit robbery charge. On October 25, 2010, the jury found Jones guilty of murder in the first-degree and aggravated robbery with a deadly weapon. Jones was sentenced to life imprisonment without the possibility of parole.

FACTS

[¶ 4] In July of 2009, Jones, his sister, and her husband Dedrick Bell (Bell), moved to Cheyenne. Jones found a job at a lemonade stand at Cheyenne Frontier Days. He used the money he stole from the lemonade stand to buy a large amount of marijuana and sold it in smaller quantities for a profit. He used the profit to rent a room at the Firebird Motel and purchased a van.

[¶ 5] The events of the night of July 26, 2009, which led to Jones' conviction and, ultimately to this appeal, were established through the testimony of a series of witnesses. Dorene Ormeno (Ormeno) and her friend, Jacole Fierro (Fierro), invited Jones to a local party. Jones drove his van to the party. The party was held in the basement of Whitehead's house. The party included two juveniles identified as MG and JH, David Graham, who owned the house, as well as Jones, Ormeno, and Fierro. Whitehead had just received a large amount of money from an insurance settlement. He openly displayed a large sum of cash. Jones expressed interest in the $2 dollar bills that Whitehead displayed and traded Whitehead for some larger bills.

[¶ 6] Jones, in the presence of Whitehead, Ormeno, and Fierro, stated that if he were to rob someone, he would shoot the person in the kneecap. Ormeno and Fierro thought that Jones' comment was “weird.” Ormeno also testified that Jones told Whitehead that if he were to steal money from someone, that he would shoot the person in the kneecap rather than face a murder charge. Jones left the party, picked up Bell, and returned. Jones and Bell socialized with Whitehead and others in the basement. Ormeno stepped into the bathroom and when she came out, she saw Jones point a gun at Whitehead and heard Jones tell everyone to get down. Ormeno saw Jones fire a shot at Whitehead and she ran to a back bedroom. MG and JH joined her in the back bedroom where they all hid in a closet. Then she heard two more shots. Before the altercation ended, Jones would shoot the victim five times.

[¶ 7] Fierro testified that during the party Whitehead showed off a stack of $2 bills and that Jones and Whitehead counted the money. She also overheard Jones tell everyone to get on the ground and then he shot Whitehead twice. As Whitehead reached into his pocket to hand Jones the money, Jones shot him a third time. Whitehead dropped the money as he fell to the floor. Fierro testified that the only thing Whitehead dropped was the money and nothing else. Jones picked up the money and fled the house with Bell.

[¶ 8] As JH was coming down the stairs, he saw Jones at the bottom of the stairs with a gun. Jones directed that everyone get down. JH heard Jones order Whitehead to “give me your money.” As JH ran towards a bedroom, he heard the gunshots. MG testified similarly—he was walking down the stairs with JH when he heard a voice say, “everybody get down” and heard two gun shots. MG watched as Whitehead motioned toward his pocket and Bell took the money from Whitehead's pocket. According to MG, Whitehead had $500.00 to $1,000.00 in $2 bills.

[¶ 9] David Graham also testified that he also heard several shots, saw Whitehead fall to the floor, and saw Jones with a gun in his hand telling everyone to get down. He also overheard Bell tell Whitehead to “do what he was told” and that Jones was “serious.” Jones walked over to Whitehead, reached into Whitehead's pocket, and removed money.

[¶ 10] Bell testified that after Jones picked him up in the van that night, Jones talked about robbing somebody. After Bell arrived at the party, Bell began drinking and socializing with the others in the basement. Bell saw Jones pull out a gun and tell everyone to “get down” and then said to Whitehead, “give me your money.” Bell told everyone to do what Jones told them. Bell then saw Whitehead fall to the floor, and Bell ran from the basement and out of the house.

[¶ 11] After crashing the van, Jones and Bell fled on foot. Jones and Bell were arrested at the Round–Up Motel. The police recovered approximately $1,500.00 all in $100 bills in the room, and found approximately $3,000.00 on Jones. Also, at the crime scene, the police recovered a stack of $2 bills from the victim's pocket. There was no evidence of any drug activity.

[¶ 12] Jones testified at trial that he had stolen money from the proceeds of the lemonade stand and pocketed approximately $600.00 per day. He claimed to have bought and sold drugs with the money at a profit. According to Jones' testimony, he agreed to sell Whitehead eleven pounds of marijuana for $9,000.00 at the party. Jones testified that he had left the party to get the marijuana, picked up Bell, and asked Bell to bring his gun.

[¶ 13] According to Jones, upon returning to the party, Whitehead asked everyone to go upstairs, leaving only Jones, Whitehead, Ormeno, and Fierro in the basement. Jones claimed to have handed the marijuana to Whitehead and he inspected it and handed it to Fierro. Whitehead then went to get his money but returned with a gun and demanded that Jones empty his pockets. When Ormeno came out of the bathroom, Jones took advantage of the distraction, pulled his gun, and began firing at Whitehead. Jones testified that Whitehead never walked towards him. Jones claimed that he picked up the marijuana (note that he testified that he had handed the marijuana to Whitehead who had in turn handed it to Fierro) and the money that Whitehead dropped, and both he and Bell fled. Jones contended that he picked up his own money. Jones testified that he did not pick up Whitehead's alleged weapon. The two men fled on foot after crashing the van.

ISSUES

[¶ 14] Jones states the issues as follows:

It was plain error for the district court to omit the intent element from the jury instruction defining robbery which caused prejudice to [Jones].

The evidence at trial was insufficient to sustain a conviction of robbery.

[Jones] was denied his right to a fair trial due to the cumulative effect of four acts of prosecutorial misconduct.

STANDARD OF REVIEW

[¶ 15] The State conceded at oral argument before this Court that the trial judge failed to properly instruct the jury. However, the State argues that this error does not constitute plain error. Due to the failure of Jones to lodge objections to the jury instructions, the plain error standard of review applies. To demonstrate plain error, Jones must show: 1) the record clearly reflects the error; 2) the error was a clear and unequivocal rule of law; and 3) Jones was materially prejudiced by the denial of a substantial right. Causey v. State, 2009 WY 111, ¶ 18, 215 P.3d 287, 293 (Wyo.2009); Vigil v. State, 859 P.2d 659, 662 (Wyo.1993); In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). All jury instructions given must be read together. State v. Jackson, 75 Wyo. 13, 291 P.2d 798 (1955). Instructions must be considered as a whole and not according to isolated phrases and paragraphs. Hoskins v. State, 552 P.2d 342 (Wyo.1976).

DISCUSSION

[¶ 16] The district court instructed the jury as follows:

The elements of the crime of Aggravated Robbery are:

1. On or about the 27th day of July, 2009;

2. In Laramie County, Wyoming;

3. The Defendant, Charles Edward Jones;

4. In the course of committing Robbery;

5. Used a deadly weapon.

[¶ 17] The district court defined “robbery” as: “[T]he stealing, taking or carrying away of property of another with infliction of bodily injury upon another person.” (Emphasis added.)

[¶ 18] In Cloman v. State, 574 P.2d 410, 419 (Wyo.1978) we explained,

Since robbery is but larceny aggravated by use of force or fear to accomplish the taking of property, then felonious intent required to rob is the same intent common to those offenses that, like larceny, are grouped as theft in [the] penal code.

A significant prospect of violence is involved in robbery. Id. Larceny is...