Jones v. State

• Decision Date: 23 April 2013
• Docket Number: NO. 2011-KA-01468-COA,2011-KA-01468-COA
• Citation: Jones v. State, NO. 2011-KA-01468-COA (Miss. App. Apr 23, 2013)
• Parties: LATITUS JONES A/K/A LATIDTUS JONES APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

LATITUS JONES A/K/A LATIDTUS JONES APPELLANT

v.STATE OF MISSISSIPPI APPELLEE

NO. 2011-KA-01468-COA

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

DATED: April 23, 2013

DATE OF JUDGMENT: 08/23/2011

TRIAL JUDGE: HON. CHARLES E. WEBSTER

COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT:

GEORGE T. HOLMES

PHILLIP BROADHEAD

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: BRENDA FAY MITCHELL

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION:

CONVICTED OF UTTERING FORGERY

AND SENTENCED AS A HABITUAL

OFFENDER TO TEN YEARS IN THE

CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS

WITHOUT ELIGIBILITY FOR PAROLE OR

PROBATION AND TO PAY RESTITUTION

OF $950.09

DISPOSITION: AFFIRMED - 04/23/2013

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

BARNES, J., FOR THE COURT:

¶1. A Tunica County jury convicted Latitus Jones of uttering forgery. The trial judge sentenced Jones as a habitual offender to ten years in the custody of the Mississippi Department of Corrections (MDOC). Jones now appeals, claiming that his indictment wasdefective; he was prejudiced by appearing shackled before the jury; an audio recording of his interview by law enforcement should have been suppressed; and the weight and sufficiency of the evidence was inadequate. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In August 2010, Jones was indicted for uttering forgery of a check. The charge stems from an incident on or about Saturday, October 17, 2009.¹ On that day, shortly before closing time, Jones entered the Money Tree, a check cashing business in Tunica, Mississippi, and presented a check for $950.09 to employee Linda Tutor to be cashed. The check was drawn from the account of "Real's Trucking, Inc.," in Gunnison, Mississippi, and dated October 12, 2009, for "contract labor." The account was at Woodforest Bank, and the check was signed by "Joe Peals." Since it was Saturday, Tutor could not verify the check with the bank's automated telephone number, but she cashed it for Jones anyway. Seven days later, Tutor learned the check did not clear the bank.

¶3. Jones then made a second trip to the Money Tree on or about Saturday, October 24, again at closing time, attempting to cash another check for $950.87, drawn from "Goss Roofing, Inc.," in Greenville, Mississippi, dated October 22, 2009, and signed by "Tom Best." Tutor did not cash the check but instead contacted law enforcement and made casual conversation with Jones until the police arrived. Law enforcement asked Jones to come tothe police station for an interview, and Jones complied. After the interview, he was released. Over a month later, a warrant was issued for Jones's arrest in connection with uttering a forgery and the robbery of a Kroger store in Washington County. On December 4, 2009, Jones was interviewed a second time by law enforcement.

¶4. In August 2010, Jones was indicted for one count of uttering forgery in Tunica County. The text of the indictment related to the first check from Real's Trucking. However, erroneously attached to the indictment was a copy of the second check from Goss Roofing.

¶5. In July 2011, Jones's two-day trial commenced. He appeared at the courthouse in his yellow MDOC prison jumpsuit, wearing a waist shackle and leg irons. The prosecution raised a concern about the jury's seeing Jones restrained; so a hearing ensued in the judge's chambers. After testimony from MDOC officers about whether Jones should remain restrained, the judge decided Jones should not walk before the jury with restraints on, but would already be seated at the defense table when they entered. However, after voir dire, the judge noted it was apparent the jury had seen Jones's restraints. Therefore, prior to the State's opening statement, he instructed the jury that the fact Jones was already in the custody of the MDOC had no bearing on his guilt or innocence for the current charge. Then, during the State's opening statement, the jury had to be excused when the court reporter had technical difficulties. Upon their return, the judge announced that Jones's restraints had been removed, and again instructed the jury to disregard the restraints as evidence of guilt or innocence. On the second day of trial, Jones was not shackled and wore civilian clothes.

¶6. Also, before trial, a hearing was held on a Miranda² violation Jones alleged in a pro se pretrial motion. The allegation concerned statements taken by Officer Michael Nichols, chief investigator for the Tunica Police Department, who conducted the two interviews with Jones in October and December of 2009. Officer Nichols was examined, as well as Jones. Two signed waiver-of-rights forms for each interview were introduced into evidence. The judge found no Miranda violation had occurred during the interviews.

¶7. At trial the State called four witnesses. Officer Nichols testified that he was notified by Money Tree when no record of the account for the first cashed check was found. He called the Woodforest Bank and discovered the check's account never existed. There was also no response when Officer Nichols called the phone number listed on the check for "Real's Trucking." Further, when a computer search was done for the address of the alleged company in Gunnison, it could not be found. Satellite computer photographs showed the area to be residential.

¶8. The first time Officer Nichols interviewed Jones was after Jones attempted to cash the second check on October 24, 2009. At that time, Officer Nichols could not verify that the Goss Roofing check was invalid, but he confronted Jones about the invalidity of the Real's Trucking check. Jones told him both checks were for some work he had done for two different people, but he could not provide Officer Nichols with the names of the individuals who had given him the checks. Also during the interview, Jones revealed he was fromRosedale, Mississippi, and had a cousin by the name of "Joe Pearls," but he did not provide any further useful information for the investigation, and was released.

¶9. On December 4, 2009, Officer Nichols interviewed Jones again. At this point, Jones was under arrest, and gave a statement that revealed an illegal check-cashing scheme, whereby he and others were receiving the checks from an individual named Ellis Urshery. The CD audio recording of both of Jones's statements was entered into evidence, and portions were played for the jury during Officer Nichols's examination. In both interviews, Officer Nichols immediately advised Jones of his Miranda rights, and Jones signed a statement waiving those rights.

¶10. Tutor, who had worked at Money Tree for approximately four years, related Jones's two check-cashing attempts. Additionally, Woodforest Bank employee Tameka Dowl from the Senatobia, Mississippi branch testified that she could not find the account's name or number in the bank's system for the first check. The bank also has branches in Greenville and Clarksdale, Mississippi. Finally, a Gunnison resident testified that the address on the Real's Trucking check was actually her residential address, and there had never been such a business at the house or in Gunnison. The residence had been purchased after a foreclosure.

¶11. The State then rested, and the defense did not call any witnesses. The jury found Jones guilty of uttering forgery. At Jones's sentencing hearing, proof of two prior convictions was entered into evidence - a bank robbery in Illinois in 1999 and the Washington County Kroger robbery in 2009. The judge sentenced Jones as a habitualoffender under Mississippi Code Annotated section 99-19-81 (Rev. 2007) to ten years in the custody of the MDOC, without the possibility for parole or probation. Jones filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. Jones timely appealed.³

ANALYSIS

1. Indictment

¶12. Jones argues that his indictment is fatally defective because the check described in the indictment for uttering forgery (the check drawn from "Real's Trucking, Inc.," on October 12, 2009 for $950.09) was not attached to the indictment. Instead, the second check Jones attempted to cash at the Money Tree (from "Goss Roofing, Inc.," on October 22, 2009 for $950.87) was attached. He states this error warrants reversal of his conviction.

¶13. The purpose of an indictment is to give the defendant reasonable notice of the charges against him in order that he may prepare an adequate defense. Brawner v. State, 947 So. 2d 254, 265 (¶31) (Miss. 2006) (citing Brown v. State, 890 So. 2d 901, 918 (¶61) (Miss. 2004)). Indictments must contain "a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." URCCC 7.06. The ultimate test for the validity of an indictment is whether the defendant was prejudiced in preparing his defense. Medina v. State, 688 So.2d 727, 730 (Miss. 1996). Whether an indictment is fatally defective is a question of law, which this Court reviews de novo. Moten v. State, 20 So. 3d 757, 759 (¶4) (Miss. Ct. App. 2009).

¶14. Jones admits that this issue was never raised before the trial court. While Jones did file a pro se motion to quash his indictment for various reasons, it did not include this specific issue. The State argues the issue is procedurally barred. Generally, "[a] trial judge will not be found in error on a matter not presented to him for decision." Gray v. State, 728 So. 2d 36, 70 (¶169) (Miss. 1998) (quoting Jones v. State, 606 So. 2d 1051, 1058 (Miss. 1992)). "It is only in cases where the indictment does not charge an offense that defects in an indictment may be challenged on appeal for the first time." Salisbury v. State, 293 So. 2d 434, 436 (Miss. 1974) (citing Cohran v. State, 219 Miss. 767, 775, 70 So. 2d 46, 48 (1954)).

¶15. Additionally, courts may amend an...