Jones v. State

820 So. 2d 687, 2000 Miss. App. LEXIS 347, 2000 WL 1053993
Procedural entryThis page is a short order in Jones v. State. Read the opinion of the Court — 724 So. 2d 1066
Court of Appeals of Mississippi·Decided August 1, 2000·No. No. 1998-KA-01665-COA·Published

Opinion

KING, P.J,

for the Court:

¶ 1. Adrian Jones (Jones) perfected this appeal from an order of the Circuit Court of Jones County, Mississippi which overruled his motion for judgment notwithstanding the verdict. Jones, convicted of kidnaping, was given a life sentence in the custody of the Mississippi Department of Correction. Jones alleges the following errors which we recite verbatim: 1) The trial court committed reversible error in refusing the defendant’s requested instruction of how the jury was to view the testimony of the alleged accomplice. 2) The trial court committed reversible error in refusing requested instruction D-7. 3) The trial court committed reversible error in refusing defendant requested instruction D-9. and 4) The trial court committed reversible error in allowing the jury to deliberate further and change their verdict after they had brought it out into open court and announced it.

FACTS

¶ 2. On February 27, 1998, in a two-count indictment, the Grand Jury of Jones County charged Jones, Terry Jones, Johnny Collins (Collins), Stacy Stevens (Stevens), and Wanda Cooper (Cooper) with kidnaping and murder. At his arraignment, Jones entered a plea of not guilty to all charges. Jones moved the court for a severance from his co-defendants. The court granted Jones’s motion, and trial of this matter began on July 27,1998.

[689]*689¶ 3. The State’s witnesses included: co-indictee Collins; Captain Lafayette Nel-. son, of the Jones County Sheriffs Department; Mel Riley, chief investigator of the Jones County Sheriffs Department; and Dr. Steven Hayne, who performed the autopsy on the deceased.

¶ 4. Collins testified that on the evening of November 20, 1997, he was at the home of Grace Jones at 1222 Anderson Street. Also present were Terry Jones, Adrian Jones, Stacy Stevens, Wanda Cooper, Patrick Jones, and Willie Jones. Between the hours of 2:00 A.M. and 3:00 A.M. a man, later identified as Edward Smith (Smith), approached the group and asked to buy cocaine. To pay for his purchase, Smith offered a check from Wayne Farms, payable to Edward Smith. Because Smith was unknown, the group declined that form of payment. Someone said that Smith was an undercover police officer, at which point, Terry Jones then said to “get” Smith. At that point, everyone began beating Smith.

¶5. The group took Smith across the street to an empty lot and laid him on the ground. In order to move Smith from the vicinity of Terry Jones’s mother’s house, the group placed the unconscious Smith in the trunk of Cooper’s car. The parties then began to drive away from Anderson Street toward an unspecified destination.

¶ 6. At some point, Cooper turned the car around and headed back toward Laurel. Smith, who was still in the trunk of the car, woke up and began kicking and screaming. Suddenly, the car stalled, and would not restart. The occupants then pushed it to the side of the road. Smith was removed from the trunk and placed on the side of the road. Believing the car to be out of gas, they stopped a passing motorist who took Cooper to get gas and brought her back to the stalled car.

¶ 7. After Cooper returned with the gas, the car still failed to start. Terry Jones, Stevens, and Adrian Jones returned to the side of the road where Smith was lying. Terry Jones, Stevens and Adrian Jones then poured gas on Smith and set him on fire.

¶ 8. Captain Lafayette Nelson (Nelson) of the Jones County Sheriffs Department testified that he received a call concerning three bodies on the side of the road. After receiving the call, Nelson drove to Luther Hill Road. Nelson parked his patrol car in front of the parked car. As he walked toward the car, he noticed what appeared to be a body in the ditch. Nelson retened to his patrol car and radioed for assistance.

¶ 9. Mel Riley, chief investigator of the Jones County Sheriffs Department, arrived on the scene at approximately 6:40 A.M. He collected evidence from the scene and packaged it for processing. Riley testified that, as a result of his investigation, arrests were made for the murder of Smith.

¶ 10. Dr. Steven Hayne performed the autopsy on Smith. He testified that Smith received a non-lethal stab wound to the back and numerous cuts and bruises to his face and body. Dr. Hayne testified that Smith suffered flash burns and charring all over his body. Dr. Hayne determined that the cause of death was the result of extensive thermal burns, swelling of the larynx and smoke inhalation.

¶ 11. The State rested after Dr. Hayne’s testimony. Jones chose not to testify on his own behalf. After the defense rested, the jury received instructions and began their deliberations. After deliberating, the jury was unable to reach a verdict on the murder charge. The jury did, however, find Jones guilty of kidnaping and sentenced him to life in the custody of the Mississippi Department of Corrections. Jones moved for a new trial or, in the [690]*690alternative, for a judgment notwithstanding the verdict. The trial court overruled both motions. Aggrieved by the court’s ruling, Jones perfected this appeal.

I.

The trial court committed reversible error in refusing the defendants requested instruction of how the jury was to view the testimony of the alleged accomplice.

¶ 12. Jones argues that refusal of jury instruction D-ll amounted to reversible error. Jones contends Collins’s testimony was self-contradictory and proposed jury instruction D-ll on accomplice testimony would have properly instructed the jury concerning Collins’s testimony. Instruction D-ll read:

You are hereby instructed that Johnny M. Collins testified in this case and that is known to the law as an accomplice. In other words, he was indicted as a co-defendant in this case along with the Defendant and it is undisputed that in return for his testimony the State agreed to recommend for him a lesser penalty than could have been imposed upon him by law. The testimony of an accomplice is to be viewed with caution and care and to be disregarded unless you find it to be absolutely true.

¶ 13. The State objected to the proposed instruction arguing that it did not correctly state the law because it required the jury to disregard the testimony unless it was found to be absolutely true. The State offered instead jury instruction S-7 which read:

Johnny Collins is an accomplice in this case, and the testimony of an accomplice is to be considered and viewed with great care, caution and suspicion. You may give it such weight and credit as to which you deem it to be entitled.

If the testimony of a co-conspirator is used and there is an evidentiary basis for a cautionary instruction, the trial court should not hesitate to give a cautionary jury instruction regarding the testimony of a co-conspirator. Derden v. State, 522 So.2d 752, 754 (Miss.1988). “Clear law in the State of Mississippi is that the jury is to regard the testimony of co-conspirators with great caution and suspicion.” Id. However, this does not require a finding of absolute truth before the testimony of an accomplice can be believed as argued by Jones. Jury instructions must correctly state the law. Munford, Inc. v. Fleming, 597 So.2d 1282, 1286 (Miss.1992). The granting of an instruction that misstates the law is error. Id. The trial court was correct in denying instruction D-ll because it did not properly instruct the jury on the applicable law.

II.

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Jones v. State, 820 So. 2d 687, 2000 Miss. App. LEXIS 347, 2000 WL 1053993 (Mich. Ct. App. 2000).

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