Jones v. State

• Decision Date: 15 April 2008
• Docket Number: No. 2006-KA-01994-COA.,2006-KA-01994-COA.
• Citation: 993 So.2d 386
• Parties: Gregory Deon JONES, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

993 So.2d 386

Gregory Deon JONES, Appellant, v. STATE of Mississippi, Appellee.

No. 2006-KA-01994-COA.

Court of Appeals of Mississippi.

April 15, 2008.

Rehearing Denied July 29, 2008.

Certiorari Denied October 9, 2008.

Glenn Sturdivant Swartzfager, Jackson, attorney for appellant.

Office Of Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before MYERS, P.J., IRVING and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. Gregory Deon Jones was convicted in the Circuit Court of Rankin County for armed robbery. He was sentenced to life imprisonment without the possibility of parole as a violent habitual offender by an order entered August 14, 2006, and placed in the custody of the Mississippi Department of Corrections. Aggrieved, Jones appeals assigning the following issues for review:

I. Whether the fruits of Jones's arrest should have been suppressed.

II. Whether probable cause existed to warrant Jones's arrest.

III. Whether the trial court erred by denying Jones's motion to suppress.

IV. Whether the photographic lineup was suggestive and improper.

V. Whether the indictment should have been quashed.

VI. Whether the trial court erred in admitting the knife, shirt, and photographic lineup into evidence.

VII. Whether the trial court erred by not grating Jones's motion for a mistrial.

VIII. Whether the trial court erred by not granting Jones's motion for a directed verdict.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 5, 2005, at approximately 8:00 a.m., a man entered the Super Saver Exxon station at the intersection of Old Brandon Road and Pearson Road in Pearl, Mississippi. He purchased a cup of coffee and then exited the store. He reentered about five minutes later, pulled a knife on the store clerk,¹ demanded that she open the cash register, robbed the store of two hundred and forty-eight dollars, and fled the scene. Once the man was gone, the store clerk ran out of the store and hopped into the car of a customer. After explaining what had just occurred, the customer drove the store clerk to the pawn shop across the street and reported the incident to the Pearl Police Department.

¶ 3. The Pearl Police Department informed Detective Mark Logzino of the robbery later on that morning. When he arrived at the scene, Detective Logzino spoke to the store clerk who gave a detailed description of the armed robber. He also viewed a video of the events recorded by the store's video surveillance system. After viewing the tape, Detective Logzino contacted a detective at the Jackson Police Department in an attempt to identify the person involved in the robbery. From their conversation, Detective Logzino was able to identify Jones as a possible suspect. Detective Logzino had the Jackson Police Department compile a photographic lineup which included Jones and five other males with similar physical characteristics. Later that same day, the store clerk identified Jones from the photographic lineup as the armed robber. As a result of the identification, a warrant was issued for Jones's arrest.

¶ 4. On February 6, 2005, one day after the robbery was committed, Jones was spotted by Detectives Reginald Cooper and Tommy Jones of the Jackson Police Department at an Exxon gas station at the intersection of County Line Road and Ridgewood Road in Jackson, Mississippi. After watching him for a couple of minutes, the detectives approached Jones, who immediately took off running. The detectives pursued Jones around a fence behind the Exxon station to the rear parking lot of the Hilton Hotel on County Line Road. While police were in pursuit, they observed Jones twice reach into his pocket and discard what appeared to be a weapon. Jones was apprehended inside of the Hilton Hotel lobby/dining area. He was wearing the same shirt as identified by the store clerk and visible in the surveillance footage. After apprehending Jones, Detective Cooper recovered a knife from the area where Jones was seen discarding it. The knife was later identified by the store clerk as the knife that was used in the robbery.

¶ 5. At trial, the store clerk identified: (1) Gregory Jones as the armed robber, (2) the shirt Jones was wearing when arrested as the same in which he committed the armed robbery, and (3) the knife that Jones discarded while fleeing police as the same used in the commission of the armed robbery. After a short time of deliberation by the jury, the foreman told the trial judge that they were one vote short of a unanimous guilty verdict, but they seemed to be "deadlocked," because one juror was not "considering any discussions." Finding the jury not to be "hopelessly deadlocked" the trial judge excused the jurors for the night. Before excusing them, the trial judge instructed the jurors that they were not to discuss the case with anyone and were to reconvene the following morning for deliberation. The following morning the jury returned a guilty verdict.

¶ 6. After sentencing, Jones sought to appeal the trial court's decision with the assistance of the Mississippi Office of Indigent Appeals. Counsel at that office filed a brief on behalf of Jones pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005), stating that "there are no issues that counsel could in good faith present to the Court in this appeal." Jones continued to pursue his appeal by filing a pro se brief. Jones now appeals to this Court.

ANALYSIS

I. Whether the evidence was properly admitted.

¶ 7. We consider Issues I, III, and VI, as designated by Jones, together as each issue challenges whether the trial court erred by admitting the knife, shirt, and photographic lineup into evidence. Jones contends that his motion to suppress the evidence should have been granted because (1) the evidence was the product of an unlawful arrest and (2) its admittance was more prejudicial than probative under Rule 403 of the Mississippi Rules of Evidence.

¶ 8. Jones's motion to suppress the evidence appears in the record. Prior to trial, Jones was given the opportunity to bring his pretrial motions before the trial court. Jones addressed several of the district attorney's motions, but he failed to bring any of his own. Jones has failed to direct this Court to the trial court's ruling on the motion to suppress. If Jones ever obtained a ruling on the motion from the trial court, the ruling is not apparent from the record on appeal. It is the movant's responsibility to obtain a ruling on a motion from the trial court, and the movant's failure to pursue a ruling on a motion constitutes a waiver. Byrom v. State, 863 So.2d 836, 851(¶ 27) (Miss.2003). Further, when each item of evidence was presented at trial, Jones failed to renew his motion or object to its admittance. It is well-settled law in Mississippi that failure to make a contemporaneous objection regarding the admission of evidence at trial waives the argument for purposes of appeal. Gatlin v. State, 724 So.2d 359, 369(¶ 43) (Miss. 1998). Therefore, by failing to pursue a ruling on the motion from the trial court or by not objecting to the admission of the evidence, Jones abandoned the motion and waived this issue for appeal. This issue is without merit.

II. Whether probable cause existed to warrant Jones's arrest.

¶ 9. Jones claims that the Jackson Police Department arrested him on February 6, 2005, without probable cause and a valid arrest warrant. Again, Jones failed to address the legality of his arrest at trial and is procedurally barred from asserting it on appeal. However, plain errors of sufficient constitutional importance which are likely to affect the outcome of a case may be addressed for the first time by this Court upon appeal. Our supreme court "has recognized an exception to procedural bars where a fundamental constitutional right is involved." Maston v. State, 750 So.2d 1234, 1237(¶ 14) (Miss.1999); see Smith v. State, 477 So.2d 191, 195 (Miss.1985). Consequently, we will review this issue.

¶ 10. In order to arrest an individual suspected of a felony, either with or without a warrant, a police officer must have (1) probable cause to believe that a felony has been committed and (2) probable cause to believe that the person proposed to be arrested is the one who committed it. Miss.Code Ann. § 99-3-7(1) (Rev.2007); Floyd v. State, 500 So.2d 989, 991 (Miss.1986); Henry v. State, 486 So.2d 1209, 1212 (Miss.1986); Swanier v. State, 473 So.2d 180, 186 (Miss.1985). "The existence of `probable cause' or `reasonable grounds' justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The determination depends upon the particular evidence and circumstances of the individual case." Smith v. State, 386 So.2d 1117, 1119 (Miss. 1980) (quoting McCollum v. State, 197 So.2d 252, 254-55 (Miss.1967)). "The facts necessary to uphold an arrest without a warrant must be sufficiently strong to support the issuance of a warrant for arrest." Swanier, 473 So.2d at 186 (quoting Smith, 386 So.2d at 1119).

¶ 11. Whether or not the arrest warrant was properly issued is irrelevant in this case. There is ample evidence to support that probable cause existed for Jones's arrest without a warrant. After receiving a description of the suspect, viewing the surveillance video, and speaking with the Jackson Police Department, Detective Logzino was able to identify Jones as a suspect in the robbery. In a photographic lineup that included five other individuals, the store clerk identified Jones as the armed robber. The store clerk's positive identification was sufficient in itself to provide the police with reasonable grounds to suspect that Jones committed the crime. See Clay v. State, 829 So.2d 676, 679(¶ 5) (Miss.Ct.App.2002) (holding the victim's identification of the defendant as the shooter provided reasonable grounds for the police to suspect the defendant had committed the act).

¶ 12....