Johns v. State

746 So. 2d 947, 1999 WL 153723
CourtCourt of Appeals of Mississippi
DecidedMarch 23, 1999
Docket96-KA-01303-COA
StatusPublished
Cited by3 cases

This text of 746 So. 2d 947 (Johns v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johns v. State, 746 So. 2d 947, 1999 WL 153723 (Mich. Ct. App. 1999).

Opinion

746 So.2d 947 (1999)

Oliver JOHNS a/k/a Oliver Johns, Jr., Appellant,
v.
STATE of Mississippi, Appellee.

No. 96-KA-01303-COA.

Court of Appeals of Mississippi.

March 23, 1999.
Rehearing Denied July 27, 1999.
Certiorari Denied October 14, 1999.

*948 Ronald L. Whittington, McComb, Attorney for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE BRIDGES, C.J., COLEMAN, AND IRVING, JJ.

IRVING, J., for the Court:

¶ 1. Oliver Johns was arrested and charged with one count of aggravated assault and one count of shooting into a motor vehicle. These charges arose from events which occurred on March 28, 1996. Johns was tried by jury in the Circuit Court of Pike County, Mississippi and found guilty and sentenced to twenty years in the custody of the Mississippi Department of Corrections and ordered to pay restitution in the amount of $1,948.42 to Kendall Jefferson and court costs. Johns appealed to this Court and raised the following issues:

I. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE IMPROPER TESTIMONY REGARDING MR. JOHNS' CHARACTER AND ALLEGED PRIOR ACTS.

II. THE TRIAL COURT ERRED IN ALLOWING HEARSAY TESTIMONY DURING DIRECT EXAMINATION OF KENDALL JEFFERSON BY THE PROSECUTOR.

III. THE PURPORTED VERDICT FAILS TO COMPLY WITH AND CONFORM TO THE REQUIREMENTS OF RULE 3.10 OF THE UNIFORM CIRCUIT AND COUNTY COURT RULES.

IV. THE TRIAL COURT ERRED IN GRANTING INSTRUCTIONS C-2 AND S-8.

¶ 2. After thoroughly reviewing the record in this case, we find no merit to the arguments raised by Johns. We, therefore, affirm the trial court.

Facts

¶ 3. Kendall Jefferson and Oliver Johns became acquainted sometime prior to March 28, 1996. The trial record does not disclose when this acquaintance was made. Sometime prior to trial a Sunflower Supermarket in McComb, Mississippi was robbed. The record is equally silent as to when this occurred. Kendall Jefferson worked at this store for nine months, but the year or span of this employment is not shown in the record.

¶ 4. Apparently, sometime after the robbery and before March 28, 1996, Ramon Johns, a cousin of Oliver Johns, was arrested and indicted for armed robbery of this Sunflower store. During this time frame there were encounters between Kendall Jefferson and Oliver Johns and the testimony of each individual contradicts that of the other regarding who initiated the altercations. The testimony is *949 clear that the two did not enjoy a good relationship prior to March 28, 1996.

¶ 5. On March 28, 1996, a car driven by Jefferson was struck several times with bullets fired by someone from another car. Jefferson was wounded in his left index finger and suffered a graze injury to the upper portion of his left arm. At the trial, Jefferson testified that just prior to the shooting, Jefferson passed Oliver Johns' automobile, side by side, at which time Jefferson "looked at [Johns] dead in the face." He further testified that Johns was the man behind the wheel and that there was another man in the vehicle with Johns. It was also Jefferson's testimony that he did not know who actually did the shooting, but that the shots were fired from the vehicle being driven by Oliver Johns.

¶ 6. On the day of the shooting, Kendall Jefferson and Oliver Johns had encountered each other two times at different convenience stores in McComb, Mississippi. They saw one another at a Conoco Quick Stop and at a business known as B.J.'s. At B.J.'s there was some conversation between the two men, according to Rushard Haynes, a witness who testified that he was then with Jefferson. Haynes, however, did not hear their conversation. Johns testified that at B.J.'s he was threatened by Jefferson. Kendall Jefferson gave testimony of threats against him by Johns.

¶ 7. Jefferson also testified that Johns threatened him at his job at the Sunflower Supermarket. It was during this encounter at the Sunflower that Jefferson testified that Johns accused Jefferson of "snitching on" Oliver Johns' cousin, Ramon Johns, regarding the robbery at Sunflower. Jefferson further testified that a couple of days after the Sunflower incident he and Johns got into a fight and that Johns ran. Jefferson went on to testify that he told his grandmother of these threats and altercations and that based on her advice he went to Oliver Johns' job at a Pizza Hut restaurant to try and resolve their differences. According to Jefferson, Oliver Johns is quoted as having said, "We ain't. We ain't leaving nothing alone and tell your grandma she ain't got to worry about keeping you out after you dead. Just tell her you're already dead." Jefferson stated that after the Pizza Hut incident things "died down"until March 26, 1996.

¶ 8. With respect to the shooting incident, both Haynes and Jefferson testified that at around 8:00 p.m., Oliver Johns followed Jefferson's car and that shots were fired from John's car into Jefferson's car. Johns took the stand in his own defense and denied that he followed Jefferson and denied that anyone in his car fired a gun into Jefferson's car.

DISCUSSION OF LAW

I. DID THE TRIAL COURT ERR IN ALLOWING INTO EVIDENCE IMPROPER TESTIMONY REGARDING MR. JOHN'S CHARACTER AND ALLEGED PRIOR ACTS?

¶ 9. Appellant Johns begins his argument by suggesting that a violation of Rule 404 of the Mississippi Rules of Evidence occurred as a result of the admission into evidence of Kendall Jefferson's and Rushard Haynes' testimony regarding the character and prior acts of Oliver Johns. Johns applies this same argument to the opening statements that were made by the prosecutor regarding the Sunflower armed robbery, for which Oliver Johns' cousin was charged, and to closing argument statements by the prosecution regarding the several acts of confrontation between Jefferson and Johns. Johns concludes that the aforementioned testimonies of Rushard Haynes and Kendall Jefferson together with the opening statements about the robbery and closing statements about the altercations between Jefferson and Johns, in effect, urged the jury to find that Oliver Johns acted in conformity therewith (and would again so act), all in violation of Rule 404 of the Mississippi Rules of Evidence.

*950 ¶ 10. Johns is correct in his argument that Rule 404(a) M.R.E. precludes the admission of evidence of a person's character or a trait of his character for the purpose of proving that he acted in conformity therewith. He is also correct when he argues that Rule 404(b) M.R.E. precludes the admission of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show that he acted in conformity therewith. However, such evidence is admissible under Rule 404(b) for other purposes, such as proof of motive. Proof of motive was the purpose for which the prosecution argued and was granted permission to have said evidence admitted. This court finds that its admission was proper. Additionally, this court finds that the trial court properly and judiciously granted jury instruction C-2, a cautionary or limiting instruction, which provided a further safeguard against the possibility that another offense was considered for impermissible purposes, i.e., to imply that at the time of the March 26, 1996 shooting incident, Johns was acting in conformity with his established character.

¶ 11.

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Related

Johns v. State
926 So. 2d 188 (Mississippi Supreme Court, 2006)
Johns v. State
925 So. 2d 840 (Court of Appeals of Mississippi, 2005)
Oliver Johns v. State of Mississippi
Mississippi Supreme Court, 2003

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Bluebook (online)
746 So. 2d 947, 1999 WL 153723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johns-v-state-missctapp-1999.