Jones v. State

• Decision Date: 15 October 2020
• Docket Number: NO. 2018-KA-01721-SCT,2018-KA-01721-SCT
• Citation: 303 So.3d 734
• Parties: Michael Ray JONES a/k/a Mike Jones v. STATE of Mississippi
• Court: Mississippi Supreme Court

303 So.3d 734

Michael Ray JONES a/k/a Mike Jones

v.STATE of Mississippi

NO. 2018-KA-01721-SCT

Supreme Court of Mississippi.

October 15, 2020

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA AINSWORTH, Jackson, ASHLEY SULSER

BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. On August 31, 2018, a jury found Michael Ray Jones guilty of aggravated assault. Jones appeals, arguing that the prosecution's comments on his refusal to give a statement violated his constitutional right to remain silent. Additionally, Jones argues that it was plain error for the trial court to allow hearsay statements.

FACTS AND PROCEDURAL HISTORY

¶2. On April 23, 2016, an altercation broke out between Brandon Jones, brother of the defendant, and Tony Drain, brother of the victim, over a gambling debt. Brandon Jones left the club where the disagreement had occurred and went to get his brother Michael Jones who was at another club across the street. Tony Drain, his brother Vincent, and their friend Jeremy Green allegedly tried to leave the club after the initial fight. In the parking lot between the two clubs, another fight began between the Jones brothers, the Drain brothers, and several others Allegedly, Tony Drain fought Brandon Jones, while Michael Jones fought Vincent Drain. Jeremy Green testified that he saw Michael Jones get pushed to the ground and that Michael Jones then shot Vincent Drain.

¶3. William Nevels, a detective with the Yazoo City Police Department, conducted an investigation after he arrived at the scene. Nevels found blood, a t-shirt, and a live .380 round. Nevels did not interview anyone on the scene, but he did interview Jeremy Green at the police station. Green informed Nevels that Michael Jones shot Vincent Drain. After Michael Jones discovered that the police were searching for him, he went to the station. Michael Jones did not wish to give a statement; he did, however, deny shooting anybody. As will be further discussed below, it is a point of some confusion in the record and briefs that Nevels spoke with Jeremy Green, mentioned above, who testified at trial, and Daquez Green, who spoke with Nevels at the scene but did not testify at trial.

¶4. According to Michael Jones, he fought Maurice Booker while Brandon Jones fought Vincent Drain. Michael Jones claims that while he was fighting Maurice Booker, he heard gunshots. Michael Jones claims that after hearing the gunshots, he and Brandon Jones left the scene.

¶5. On August 31, 2018, the jury found Michael Jones guilty of aggravated assault. Jones appeals.

STANDARD OF REVIEW

¶6. "The standard of review for admission of evidence is abuse of discretion." Debrow v. State , 972 So. 2d 550, 552 (¶ 6) (Miss. 2007) (citing Smith v. State , 839 So. 2d 489, 494 (¶ 6) (Miss. 2003) ). "However, when a question of law is raised, the applicable standard of review is de novo." Id. (citing Biglane v. Under The Hill Corp. , 949 So. 2d 9, 14 (¶ 17) (Miss. 2007) ).

¶7. "Generally, a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred." Swinney v. State , 241 So. 3d 599, 605 (¶ 13) (Miss. 2018) (internal quotation marks omitted) (quoting Parker v. State , 30 So. 3d 1222, 1227 (¶ 14) (Miss. 2010) ). "For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (¶ 14) (internal quotation marks omitted) (quoting Hall v. State , 201 So. 3d 424, 428 (¶ 12) (Miss. 2016) ). "To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether that error has prejudiced the outcome of the trial." Id. at 606 (¶ 15) (internal quotation marks omitted) (quoting Conner v. State , 138 So. 3d 143, 151 (¶ 19) (Miss. 2014) ).

DISCUSSION

¶8. Jones argues that the State's comments on his refusal to give a statement violated his constitutional right to remain silent. Additionally, Jones argues that it was plain error for the trial court to allow hearsay statements.

I. The State did not violate Jones's right to remain silent.

¶9. Jones argues that the State's comment on his failure to make a statement to the police violated his constitutional right to remain silent. At trial, the State commented on Jones's failure to tell his side of the story several times. The first was on the State's direct examination of the officer in charge of the investigation, Detective William Nevels. The State asked, "[a]nd you attempted to speak to defendant but he would not - decided not to give a statement at the time?" Nevels answered, "[t]hat's true." The State went on to ask, "[s]o you picked him up at some point in time .... And did he give a statement then?" Nevels answered, "[h]e did not." Counsel for the defense did not object. Later, on redirect of Nevels, the State asked, "[d]id he refuse to give you a statement?" Nevels responded, "[h]e did." The State then asked, "[h]as he ever told you his side of the story?" Nevels responded, "[n]o, sir." Counsel for the defense objected, stating that the defendant had a constitutional right not to respond to questioning. The judge sustained the objection, and no further action was taken.

¶10. Later, when Jones was testifying on direct examination, defense counsel asked, "[a]nd you considered what you told him giving him a statement?" Jones answered, "[y]es sir. My statement was, I didn't shoot anybody." Later on cross-examination, the State asked, "[y]ou didn't talk to the police about your side of the story?" Jones answered, "I spoke with Detective Nevels and advised him that I didn't shoot anybody."

¶11. In Mississippi, the right to silence is treated differently depending on whether the defendant has been read their Miranda rights. See Miranda v. Arizona , 384 U.S. 436, 442, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court has held,

To the extent that Chief Nelson's testimony referenced pre- Miranda silence, the evidence does not constitute plain error because the Court cannot say that the "trial court deviated from a legal rule" or that the error was "plain, clear, or obvious" in light of the split of authority on the issue.

Swinney v. State , 241 So. 3d 599, 609 (¶ 32) (Miss. 2018).

¶12. The first instance of the State's referencing Jones's silence occurred when the State asked Nevels if Jones had made a statement when he went to the station and when he was later picked up. The references were about Jones's pre- Miranda silence. Since no contemporaneous objection was made, allowing the statements would only constitute reversible error if doing so amounted to plain error. The Court in Swinney held that testimony referencing pre- Miranda silence does not rise to the level of plain error, thus the trial court's allowing the statements by Nevels referencing Jones's pre- Miranda silence did not constitute plain error.

¶13. When Nevels again commented on Jones's silence on redirect, Jones objected, and the court sustained the objection. The Court has held, "If sustaining the objection alone is considered to be inadequate to remove the alleged prejudicial effect of the objected matter from the minds of the jury, then the court must be requested to instruct the jury to disregard the matter." Alpha Gulf Coast, Inc. v. Jackson , 801 So. 2d 709, 727 (¶ 61) (Miss. 2001) (citing Anderson v. Jaeger , 317 So. 2d 902, 907 (Miss. 1975) ). The Court further stated, "The jury is presumed to understand that the court disapproves of any testimony when an objection is sustained." Id. (citing Estes v. State , 533 So. 2d 437, 439 (Miss. 1988) ). In the case sub judice the court sustained the objection, and Jones did not request further action. The Court has held that "where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error." Marks v. State , 532 So. 2d 976, 981 (Miss. 1988) (citing Simpson v. State , 497 So. 2d 424, 431 (Miss. 1986) ). Jones objected, and the objection was sustained. However, Jones declined to request that further action be taken. Accordingly, no error occurred.

¶14. Finally, the State's questions to Jones on cross-examination about his silence did not violate Jones's rights. The Court has held,

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony.

McGrone v. State , 807 So. 2d 1232, 1235 (¶ 10) (Miss. 2002) (quoting Fletcher v. Weir , 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) ).

¶15. It is unclear from the record if Jones was ever read his Miranda rights; however, he certainly had not been read his rights when he made his initial statement to the police. Jones fails to establish plain error stemming from the State's cross-examination.

II. The alleged hearsay statements did not rise to the level of plain error.

¶16. Jones argues that it was plain error for the trial court to allow the State to elicit hearsay statements at trial. Mississippi Rule of Evidence 801(c) defines hearsay as "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Miss. R. Evid. 801(c). The Court has held,

[there] are few subjects, perhaps, upon which this Court

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