Jones v. State, No. 2000-KA-00777-SCT.

• Decision Date: 25 October 2001
• Docket Number: No. 2000-KA-00777-SCT.
• Citation: 798 So.2d 1241
• Parties: Richard Mark JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

798 So.2d 1241

Richard Mark JONES v. STATE of Mississippi.

No. 2000-KA-00777-SCT.

Supreme Court of Mississippi.

October 25, 2001.

Thomas M. Fortner, Robert M. Ryan, Andre De Gruy, Jackson, Attorneys for Appellant.

Office of the Attorney General by Deirdre McCrory, Jackson, Attorneys for Appellee.

EN BANC.

DIAZ, Justice, for the Court:

¶ 1. Richard Mark Jones (Jones) was tried and convicted in the Circuit Court of Hinds County, Second Judicial District, of simple assault on a law enforcement officer and possession of a firearm by a convicted felon. Subsequently, Jones was sentenced to a term of five years for the assault conviction and a three-year term for firearm possession to be served in the custody of the Mississippi Department of Corrections (MDOC), the terms to run consecutively. Jones perfected a timely appeal to this Court and raises a litany of assignments of error.

FACTS

¶ 2. On March 16, 1998, Hinds County Sheriffs Deputy Donnie Newman (Newman) stopped at the Pit Stop Grocery in Raymond, Mississippi, on Highway 18 to fuel his police cruiser. After filling the tank, Deputy Newman paid for his purchase and spoke briefly with the attendant on duty. Although there is some conflict over the sequence and particulars of the following events, it is undisputed that Newman heard someone calling for his attention as he walked back to the patrol car. From the record, it appears that while sitting in the driver's seat of his 1987 Dodge Ram along with his wife and two sons, Jones twice called out to the deputy asking him to approach the truck. Deputy Newman walked over to the truck to see what Jones wanted. Jones has a history of conflict with the Hinds County Sheriff's Department over what he believes to be its involvement in the death of his oldest son in 1996.

¶ 3. In a quiet voice, Jones asked, "Why did you kill my son?", referring to the automobile wreck that claimed his son's life two years earlier. In response, Newman instructed Jones to take his family and leave the premises. Again, Jones asked about the death of his son. Deputy Newman explained that he was not even on duty at the time and again instructed Jones to leave. According to Newman, Jones responded by cursing and calling the deputy a "child killing motherfucker", whereupon Deputy Newman said, "Richard, I am going to give you one more chance. You need to drive out of here with your family. No use in starting a scene here." At this point, Jones allegedly stuck his head out of the window and began yelling profanity and accusing Newman of having a hand in his son's death.

¶ 4. At this time, Deputy Newman instructed Jones to get out of his truck. When Jones asked why, Newman responded, "You are under arrest." At which, Jones's wife screamed, "Don't get out. He is going to kill you." Newman again instructed Jones to step out of the vehicle. When Jones did not, Newman repeatedly attempted to pull open the driver's side door while instructing Jones to "Get out of the truck."

¶ 5. According to Deputy Newman, Jones finally threw the door open with all of his strength, knocking the deputy back three or four feet. Once he regained his composure, Newman claims he was confronted by Jones standing next to his truck with fists raised yelling, "Let's get it on." As Newman approached, Jones dropped his fists and said, "Motherfucker, hit me. That's all I want you to do. Just lay a hand on me." A brief scuffle ensued as Newman wrestled to put handcuffs on Jones. Finally, Deputy Newman was able to cuff Jones and place him in the back of the patrol car. Newman also claims that Mrs. Jones joined in the altercation while the deputy was attempting to handcuff her husband.

¶ 6. The convenience store clerk, Janice Curtis, initially claimed to have only seen the finale of the incident, the placing of Jones in the patrol car. However, at trial, she claimed to have seen the portion involving the door as well as the final result.

¶ 7. Mrs. Jones and Richard Lee Jones, the appellant's son, testified differently. They claimed that Newman was the party getting upset and that Jones merely asked questions until the deputy tried to place him under arrest.

¶ 8. Although he offered inconsistent statements, Newman testified at trial that he had seen the butts of some guns behind the passenger seat of Jones's truck. Once Jones was safely stowed in the patrol car, Newman returned to the truck. Mrs. Jones and Richard Lee Jones (and Deputy Newman's statements at the preliminary hearing) assert that Newman asked whether there were any guns in the vehicle before asking that the weapons be turned over. After a short bout of verbal fencing with both Mrs. Jones and the eldest son, Deputy Newman confiscated three weapons (a 12-gauge shotgun, an AR-15 Colt automatic rifle, and a nine-millimeter Smith & Wesson handgun). He checked to see if the guns were stolen; they were not. When Newman's lieutenant arrived, the deputy was instructed to give the guns back to Mrs. Jones who took them home.

¶ 9. In the end, Jones was tried, convicted, and sentenced to five years for simple assault on a law enforcement officer for hitting Deputy Newman with the truck door. In addition, he received a three-year sentence for possession of a firearm by a convicted felon to run consecutively to the simple assault sentence. From these convictions and sentences, Jones appeals.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING JONES'S MOTIONS TO SUPPRESS.

¶ 10. Jones's first contention is that the trial court erred in denying his two motions to suppress. The first of the two motions challenged the initial arrest as unlawful and sought to have all evidence obtained thereafter excluded as "fruit of a poisonous tree." The second motion asserted that the search of Jones's vehicle and subsequent seizure of evidence (i.e. the guns) was a violation of Jones's constitutional rights. These two motions will be dealt with separately.

A) The lawfulness of the initial arrest

¶ 11. The first motion to suppress claimed that the initial arrest was unlawful, and as such, all evidence collected afterward should be excluded. As evidence of the arrest's unlawfulness, Jones points to the fact that all misdemeanor charges stemming from the initial arrest were later dismissed by the Justice Court of Hinds County. The dismissals were not allowed to be entered into evidence at trial, and Jones claims this also constitutes reversible error.

¶ 12. Jones cites Pollard v. State, 233 So.2d 792 (Miss.1970), as authority for his position that the initial arrest was unlawful. Pollard was convicted of assault with a deadly weapon stemming from a chase and shootout with an off-duty police officer. Id. at 793. However, the conviction was later overturned when it was determined that the officer did not have sufficient probable cause to approach the subject's vehicle when initiating the arrest. Id. We concluded that any evidence of resisting the unlawful arrest should be excluded. Id. However, Pollard is not analogous to the present case because in Pollard the officer initiated the contact and in the case at bar Jones initiated the contact and asked Newman to approach the truck. More germane to the case at bar is Terry v. State, 252 Miss. 479, 173 So.2d 889 (1965). In that case, officers initiated an arrest with no evidence of a crime. "The sheriff had no right to arrest defendant unless it was evident to him at the time that some breach of the peace was being threatened or a crime was being committed in his presence." Terry, 173 So.2d at 891. The threshold question is whether Newman had probable cause to initiate an arrest. No one from the convenience store asked that Jones be removed. A determination of when the arrest began controls the outcome on this issue. From the evidence, it appears as though Deputy Newman tried to initiate an arrest before a crime had been committed by asking Jones to get out of his vehicle merely because Jones would not leave the convenience store.

¶ 13. The only acts Jones engaged in before the arrest, according to the record, which could possibly have warranted an arrest consisted of his profane remarks. There is no evidence in the record that would suggest that Jones could have initially been arrested for anything other than the verbally accusatory and profane remarks. The evidence suggests that Newman did not see the guns or inquire about the guns until after Newman told Jones he was under arrest. This situation forces this Court to consider the type of "profanity" which would warrant an arrest. Miss.Code Ann. § 97-29-47 (2000) proscribes the use of profanity in a public place. We have not had an opportunity to interpret the statute; however, the Mississippi Court of Appeals has recently had an occasion to define what it believes the use of "profanity" sufficient to warrant an arrest entails.

¶ 14. In Brendle v. City of Houston, 759 So.2d 1274 (Miss.Ct.App. 2000), Brendle was convicted of public profanity under Miss.Code. Ann. § 97-29-47 and resisting arrest. The Court of Appeals noted that it has been over 70 years since this Court has addressed the issue of what constitutes "profanity" and that we have not had an opportunity to interpret Mississippi's profanity statute. The Court of Appeals relied on other jurisdictions and the United State Supreme Court opinion of Cohen v. California 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), in overturning Brendle's conviction. The Court of Appeals found that Brendle did not use fighting words that would incite violence and therefore his subsequent arrest was not lawful. 759 So.2d at 1284. However, this Court is now reluctant to adopt the reasoning of the Court of Appeals under these facts, and finds the reasoning in Terry v. State to be dispositive of this issue. Based upon a careful review of the record, this Court finds that Deputy Newman, did not have sufficient evidence to believe that a breach of the peace was being threatened or a crime...