Jones v. State, DP-60

• Decision Date: 28 January 1987
• Docket Number: No. DP-60,DP-60
• Parties: Gregory Montecarlo JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1295

517 So.2d 1295

Gregory Montecarlo JONES v. STATE of Mississippi.

No. DP-60.

Supreme Court of Mississippi.

Jan. 28, 1987.

Rehearing Denied Sept. 30, 1987.

J.W. Miller, Robert E. Farish, Biloxi, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, Cono Caranna, Dist. Atty., Gulfport, for appellee.

En Banc.

ROY NOBLE LEE, Presiding Justice, for the Court:

Gregory Montecarlo Jones was first convicted of capital murder on May 28, 1981, and was sentenced to death. On November 28, 1984, this Court reversed the conviction because of the admission into evidence of a video-taped confession, or parts of it, after Jones had stated "I prefer not to speak to that." He was tried again in the Harrison County Circuit Court, found guilty on April 3, 1985, and for the second time, the death penalty was imposed.

Facts

Briefly, on the morning of January 21, 1981, officers of the Biloxi Police Department received a call to investigate a homicide at 629 Lameuse Street in Biloxi. There, the officers found Josie Jones, a 62-year-old female, lying dead on her living room floor. She had been fatally shot by three .22-caliber bullets. The rifle was on the floor near her body. The victim had lived at this address with one Alexis Kingston, who had suffered a stroke and was hospitalized. Montecarlo Jones was a boarder at the house and from the time Kingston suffered the stroke until January 19, 1981, he was the only occupant of the home other than Josie Jones.

The officers began an investigation, but were unable to find eye-witnesses or a suspect until they developed that Montecarlo Jones had lived in the home and had not been seen since January 19, 1981. Also, the pickup truck owned by the victim had been missing since that time. The Biloxi police learned that Jones was originally from Perry County, and they contacted the Perry County Sheriff's Office about 10:00 on the morning of January 21, 1981, and inquired whether those officers knew Montecarlo (Sonny) Jones. The police were informed that on the previous evening a pickup truck with a Harrison County license tag had been towed into New Augusta following the driver's arrest for driving under the influence of intoxicating liquor. The vehicle turned out to be the victim's truck and the driver was Montecarlo Jones. In due course, after waiving his Miranda rights, Jones admitted he was involved in the homicide, although contending that another person had done the actual killing. ¹

Law Questions

The appellant assigns fourteen (14) errors in the trial below, which will be discussed hereinafter.

I. THE COURT ERRED IN FINDING THAT APPELLANT WAS LAWFULLY ARRESTED.

II. THE COURT ERRED IN FINDING APPELLANT'S CONFESSIONS WERE FREELY AND VOLUNTARILY GIVEN.

V. THE COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT.

The three assignments above were covered in the first appeal and were decided adversely to the appellant. That decision constitutes the law of the case and the assignments are barred on the present appeal. Jones v. State, 461 So.2d 686, 694, 695, 697 (Miss.1984); Irving v. State, 441 So.2d 846, 848 (Miss.1983); Jordan v. State, 464 So.2d 475, 477 (Miss.1985).

III. THE COURT ERRED IN PERMITTING THE STATE TO SYSTEMATICALLY EXCLUDE BLACK VENIREMEN BY PEREMPTORY CHALLENGE.

IV. THE COURT ERRED IN EXCUSING FOR CAUSE THOSE VENIREMEN WHO DID NOT BELIEVE IN CAPITAL PUNISHMENT.

Relating to III, appellant cites Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). However, he concedes that no objection was raised either during the trial or on the motion for new trial. Counsel's excuse for waiving the claim at trial is that under prior law he felt he would be unsuccessful on the point. That reason given is insufficient. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Young v. Herring, 777 F.2d 198 (5th Cir.1985) Sanders v. State, 479 So.2d 1097 (Miss.1985); Barnette v. State, 478 So.2d 800 (Miss.1985); Hines v. State, 472 So.2d 386 (Miss.1985); Gray v. State, 472 So.2d 409 (Miss.1985); Billiot v. State, 454 So.2d 445 (Miss.1984).

Batson v. Kentucky, supra, required a defendant to show

1. That he is a member of a "cognizable" racial group;

2. That the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race; and

3. That facts and circumstances infer that the prosecutor used his peremptory challenges for the purpose of striking minorities.

476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.

Appellant contends on IV that the court erred in excusing two jurors for cause, i.e., Cooksey and Hebert, under the Witherspoon test. Pertinent parts of the voir dire of those jurors follow:

BY THE COURT: All right. How about Capital Punishment now, you folks, you four up here. Do you have any conscientious scruples against it, Mr. Cooksey?

BY MR. COOKSEY: Yes, sir.

BY THE COURT: Huh?

BY MR. COOKSEY: Yes, sir.

BY THE COURT: You do?

BY MR. COOKSEY: I do.

BY THE COURT: You could not impose it, under any conditions?

BY MR. COOKSEY: No, sir.

BY THE COURT: Regardless of what the evidence might show, you could not impose the Death Penalty?

BY MR. COOKSEY: I could not.

BY THE COURT: All right, sir. I'll let you step down.

* * *

* * *

BY THE COURT: Mrs. Hebert, have you heard all the questions that's [sic] been asked today?

BY MRS. HEBERT: Yes, sir.

BY THE COURT: Do you know anybody that's involved in this case?

BY MRS. HEBERT: No, sir.

BY THE COURT: You know any reason you couldn't be a fair Juror?

BY MRS. HEBERT: Yes, sir.

BY THE COURT: What's that?

BY MRS. HEBERT: I would not vote for the Death Penalty.

BY THE COURT: You would not vote for the Death Penalty under any circumstances, is that what you tell me?

BY MRS. HEBERT: Yes, sir.

BY THE COURT: Regardless of what the evidence might show, you would not vote for it. Is that right, Mrs. Hebert?

BY MRS. HEBERT: That's right.

BY THE COURT: All right, you can step down, Mrs. Hebert. Call back tomorrow afternoon.

The jurors stated that they could not under any condition impose the death penalty regardless of what the evidence showed. Appellant obviously relies upon the fact that the word "automatically" was not used by the trial judge in the voir dire and that failure to do so constituted error.

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), has been modified and supplanted by Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). We are of the opinion that the jurors were correctly excused under Wainwright v. Witt, supra, and under the more stringent test stated in Witherspoon v. Illinois, supra. The assignments of error are rejected.

IV. THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THIS IS A CIRCUMSTANTIAL EVIDENCE

CASE AND THAT THE STATE OF MISSISSIPPI MUST PROVE ITS CASE TO THE EXCLUSION OF EVERY OTHER REASONABLE HYPOTHESIS AND TO A MORAL CERTAINTY.

Point VI raised by the appellant is rejected for the reason that this is not an entirely circumstantial evidence case. Instances of direct evidence are (1) confession of appellant, (2) direct evidence of officers arresting Jones and taking possession of the victim's pickup truck, (3) evidence that an alleged accomplice mentioned by Jones was incarcerated elsewhere at the time of the homicide. In Keys v. State, 478 So.2d 266, 267 (Miss.1985), this Court spoke concerning granting an instruction on circumstantial evidence:

Keys invokes a familiar rule. Where the nature of the State's evidence is circumstantial, the sort of instruction requested by Keys here must be given. Flanagin v. State, 473 So.2d 482, 485 (Miss.1985); Hester v. State, 463 So.2d 1087 (Miss.1985); Flemmons v. State, 419 So.2d 1034, 1036 (Miss.1982); Westbrook v. State, 202 Miss. 426, 432-33, 32 So.2d 251, 252 (1947).

It is the law in this state that, where the evidence for the prosecution is wholly circumstantial in nature, the accused is entitled upon request to have the jury instructed that, before they may convict, they must find that each element of the offense has been established beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. See, e.g., Billiot v. State, 454 So.2d 445, 461-62 (Miss.1984). There is, to be sure, loose talk in some of our cases to the effect that the circumstantial evidence instruction must be given where only one of the elements of the offense charged is established circumstantially. See, e.g., Collins v. State, 447 So.2d 645, 646 (Miss.1984); King v. State, 315 So.2d 925, 926 (Miss.1975); Love v. State, 208 So.2d 755, 757 (Miss.1968). A correct statement is that the instruction must be given only where the prosecution is without a confession and wholly without eye witnesses to the gravamen of the offense charged.

See also Mack v. State, 481 So.2d 793, 795 (Miss.1985).

VII. THE COURT ERRED IN FAILING TO GIVE JURY INSTRUCTION D-6.

Appellant argues that the denial of Instruction D-6 constitutes reversible error. The instruction follows:

The Court instructs the Jury that intent to steal is a necessary element of the crime of murder while engaged in the commission or robbery and such intent to steal must be formulated by the Defendant prior to or contemporaneously with the homicide.

If you find from the evidence, beyond a reasonable doubt, that the Defendant, GREGORY MONTECARLO JONES, murdered Josie Jones but that the intent to steal was formulated afterwards, you may not find the Defendant guilty of Capital Murder but may find him guilty of Murder.

It is obvious that D-6 is a lesser-included offense instruction. Swanier v. State, 473 So.2d 180 (Miss.1985); Gillum v. State, 468 So.2d 856 (Miss.1985); Gates v. State, 484 So.2d 1002 (Miss.1986); Cabello v. State, 490 So.2d 852 (Miss.1986), cert. den., 476 U.S. 1164, 106...