Jones v. State

Decision Date28 November 1984
Docket NumberNo. 54067,54067
Citation461 So.2d 686
PartiesGregory Montecarlo JONES v. STATE of Mississippi.
CourtMississippi Supreme Court

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

Bill Allain, Atty. Gen. by Robert D. Findley and Amy D. Whitten, Sp. Asst. Attys. Gen., Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

Dispositive of the instant capital murder appeal is the question whether, once a criminally accused has waived his constitutional privilege against self-incrimination and begun making inculpatory statements, he may in the middle of interrogation invoke a privilege against further self-incrimination. Under the established criminal constitutional jurisprudence of this land, the accused is so entitled.

In the case at bar, Gregory Montecarlo Jones made substantial inculpatory statements regarding a homicide that occurred in Biloxi, Mississippi. When pressured to admit that he had acted alone and without an accomplice, Jones twice replied "I prefer not to speak on that". He thus effectively invoked his privilege against further self-incrimination. Because Jones' request was not scrupulously honored, his subsequent incriminating statements were as a matter of law unconstitutionally obtained and should not have been received in evidence against him at trial. Because these subsequent incriminating statements, in the form of a videotaped confession, were presented to the jury, Jones' conviction of capital murder and sentence of death must be vacated and the case remanded for a new trial.

We reverse Jones' conviction of capital murder and remand for a new trial. En route we will discuss those assignments of error regarding issues which need to be settled prior to Jones' new trial.

II.

A.

On the morning of January 21, 1981, officers of the police department for Biloxi, Mississippi, received a call to investigate a homicide at 629 Lameuse Street in Biloxi. Upon entering the home, officers found Josie Lincoln Jones, a 62-year-old female, lying dead on her living room floor. Ms. Jones had been fatally wounded by three bullets fired from a .22 caliber, single-shot, bolt-action rifle. The rifle was found on the floor near her body.

The victim, Josie Jones, had been living in this home with a man named Alexis Kingston. Gregory Montecarlo Jones, a/k/a Sonny Jones (sometimes hereinafter "the defendant"), had been a tenant or boarder in the house. Shortly before the incident in question, Kingston had been the victim of a debilitating stroke and had been hospitalized. Thereafter and until January 19, 1981, the only occupant of the home other than Josie Jones was Gregory Montecarlo Jones. Josie Jones and Gregory Montecarlo Jones were and are wholly unrelated to each other either by blood or marriage.

The officers immediately commenced an investigation into the circumstances surrounding the death of Josie Jones. No eyewitnesses could be located, nor have any since been identified. Neighbors advised police that a young man had been boarding with Ms. Jones and that he had not been seen since Monday, January 19, 1981--the last day anyone saw Ms. Jones alive. The investigators pieced together enough information to suggest that the boarder was known as Sonny Jones and was originally from Perry County. They On the basis of this information, at approximately 10:00 o'clock on the morning of January 21, 1981, Biloxi police officials called Perry County. They inquired of the Perry County Sheriff's office whether anyone knew of Sonny Jones. In the course of this conversation, Perry County Deputy Sheriff Robert Cowart advised that on the previous evening a pickup truck with a Harrison County license tag had been towed into New Augusta in Perry County following the driver's arrest for driving under the influence of intoxicating liquors. It quickly became apparent that the truck was probably the one missing from Ms. Jones' home and that the driver was probably Sonny Jones.

also had reason to believe that Sonny Jones had left town in a pickup truck which belonged either to Ms. Jones or to Alexis Kingston.

On the preceding evening between 9:00 and 10:00 p.m., James Barnes, a Perry County constable, had encountered a pickup truck sitting in the middle of the Highway 42 west of Richton, Mississippi. The driver was slumped over the steering wheel, apparently having passed out. The headlights had been turned off. The engine was still running. The driver was Gregory Montecarlo Jones, the defendant below. Constable Barnes administered to Jones a breath analysis test which resulted in a reading of .11 percent alcohol. He then placed Jones under arrest for operating a motor vehicle under the influence of intoxicating liquors. Miss.Code Ann. Sec. 63-11-30(1)(c) (Supp.1983). Jones was incarcerated in the Perry County jail in New Augusta, Mississippi, and his truck was impounded by Perry County law enforcement officials. Jones was still in jail in New Augusta when the inquiries about a Sonny Jones were received from Biloxi police officials the following morning.

Shortly after having been advised of the homicide of Ms. Jones in Biloxi, Perry County Deputy Cowart told the defendant that he was being charged with murder. Cowart advised Jones of his Miranda 1 rights. Jones agreed to waive those rights and began talking with Perry County officials. By 11:30 a.m., he had given an inculpatory statement in which he had admitted complicity in the robbery and death of Ms. Jones. Significantly, at this time, defendant insisted that an accomplice instigated the robbery and fired the fatal shots.

When Biloxi police investigators arrived, defendant told them essentially the same story, that is, that he had had an accomplice and that his accomplice had actually committed the murder. At 1:00 o'clock that afternoon, law enforcement officials, led by Officer Robert Payne of Biloxi Police Department, determined to take Jones to Hattiesburg to obtain a videotape recording of his inculpatory statement. The videotaping began at approximately 2:20 o'clock that afternoon. By 3:30 p.m., defendant had admitted that he was solely responsible for the robbery and murder of Ms. Jones. The facts of this confession and interrogation will be set forth more fully below as they relate to one of the central issues on this appeal.

In summary, within approximately eight hours of the discovery of Ms. Jones' body, Gregory Montecarlo Jones was in custody and had admitted that he was the sole perpetrator of the robbery and murder. The investigation thus ended.

B.

On February 20, 1981, Gregory Montecarlo Jones, defendant below and appellant here, was formally charged with the capital murder of Josie Lincoln Jones, while he was engaged in the robbery of Ms. Jones pursuant to Miss.Code Ann. Sec. 97-3-19(2)(e) (Supp.1983) 2. Jones entered a plea of not guilty.

On May 26, 1981, the case was called for trial in the Circuit Court of Harrison County, Mississippi. The trial lasted for three days. On May 29, 1981, after approximately two hours of deliberation, the jury returned a unaminous verdict that Jones was guilty as charged in the indictment.

Thereafter, on the same day, Gregory Montecarlo Jones was put to trial on the question of sentence. After deliberating approximately one and one-half hours, the jury returned its verdict that the aggravating circumstances outweighed the mitigating circumstances and that Jones should be put to death in the manner prescribed by law. From this conviction and sentence, Jones appeals.

III.

On this appeal Jones presents thirteen assignments of error. Because of the disposition we ultimately make, we find it necessary that only five be considered.

We reaffirm at the outset our commitment to heightened scrutiny on appeal in cases where the sentence of death has been imposed. Concurring in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Justice Stewart wrote:

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

--408 U.S. at 306, 92 S.Ct. at 3760, 33 L.Ed.2d at 388.

This theme, the unique nature of the death penalty, has been repeated time and time again: Furman v. Georgia, 408 U.S. at 287-289, 92 S.Ct. at 2751-2752, 33 L.Ed.2d at 376-378 (Brennan, J., concurring); Gregg v. Georgia, 428 U.S. 153, 187-188, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859, 882, 883 (1976); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393, 402 (1977); Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 2869, 53 L.Ed.2d 982, 993 (1977); Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973, 989-990 (1978); and Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392, 403 (1980).

This Court has repeatedly recognized that appellate review in capital cases is different from that in other cases. Irving v. State, 361 So.2d 1360 (Miss.1978) observes:

We recognize that thoroughness and intensity of review are heightened in cases where the death penalty has been imposed. [citation omitted] What may be harmless error in a case with less at stake becomes reversible error when the penalty is death. [citations omitted]

361 So.2d at 1363; Laney v. State, 421 So.2d 1216, 1217 (Miss.1982), Williams v. State, 445 So.2d 798, 810-811 (Miss.1984); Neal v. State, 451 So.2d 743, 750 (Miss.1984); Billiot v. State, 454 So.2d 445, 455 (Miss.1984).

IV.

A major assignment of error presented by Jones regards the exclusion for cause of potential juror, Nancy Stanford. The trial judge's action in sustaining the State's challenge for cause is assigned as error on grounds that it denied...

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