Jones v. State

911 So. 2d 556, 2005 WL 704149
CourtCourt of Appeals of Mississippi
DecidedMarch 29, 2005
Docket2003-KA-02017-COA
StatusPublished
Cited by2 cases

This text of 911 So. 2d 556 (Jones 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
Jones v. State, 911 So. 2d 556, 2005 WL 704149 (Mich. Ct. App. 2005).

Opinion

911 So.2d 556 (2005)

Othnel JONES a/k/a Ott Jones, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02017-COA.

Court of Appeals of Mississippi.

March 29, 2005.
Rehearing Denied June 14, 2005.
Certiorari Denied September 22, 2005.

*557 Edmund J. Phillips, Jr., Robert N. Brooks, Philadelphia, Dan W. Duggan, Jr., Brandon, attorneys for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Othnel Jones was convicted of murder by a jury in Leake County, Mississippi. Jones appeals, claiming ineffective assistance of counsel. He claims his attorney failed to object to testimony of prior bad acts evidence produced by the State, failed to object to a series of leading questions, and allowed the State's witnesses to speculate.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Following a two day trial in the Leake County Circuit Court, Othnel Jones was convicted of murdering Ray Ferguson, in violation of Mississippi Code Section 97-3-19(1)(a) (Rev.2000). The State called ten witnesses, including Steve and Tammy Ferguson, the children of the deceased; Glenda Ferguson, the wife of the deceased; Mark Roberson, a neighbor and an eyewitness; Mark Wilcher, Rhonda Blanton, Jimmy Vance, and Mike Freeney, deputies with the Leake County Sheriff's Department; Sheriff Greg Waggoner; and Dr. Steven Hayne, who performed the autopsy. In his defense, Jones called his wife as a witness, and Jones testified on his own behalf.

¶ 4. According to the State's account of the events that led to Ray Ferguson's death, Jones pulled his truck out in front of Steve and Tammy's car and told them to "pick up some trash or something in the road." Steve refused and told Jones that they had not thrown any trash. Jones retrieved a shotgun from his truck, and Steve told Tammy they should leave. Tammy agreed, and they quickly drove to their parents' house.

¶ 5. When Steve and Tammy arrived at their parents' house, they told their parents what had happened. Someone notified the authorities. A few minutes later, Jones, who was drinking a beer, returned and stopped in front of the Ferguson house. Ray pointed his finger at Jones and asked Jones why he had threatened *558 his children and grandchildren. Jones "went to hollering and cussing to him" and threatened to kill the entire family, starting with Ray.

¶ 6. As Jones continued to scream at Ray, Ray told Jones that he would call the police, and then he turned around and made a few steps towards the telephone. As soon as Ray turned around, Jones pulled a .357 magnum and shot Ray in the back. Ray fell with his back turned against the truck. Jones then pulled the gun on Steve. Because Jones was trying to shoot Steve, Steve fought with Jones, took the gun away from him and hit him with it. Steve pointed the gun at Jones, but Ray implored Steve not to shoot. Steve instead shot the tires and motor of Jones's truck in an unsuccessful attempt to prevent Jones from fleeing the scene. Ray died at the hospital.

¶ 7. Rhonda Lynn Blanton, a dispatcher with the Leake County Sheriff's Office, received a 911 call from the Ferguson residence, reporting that someone had been shot. A short time later, Jones called and asked to speak to the sheriff. After some conversation, Jones admitted that he had "just killed a fellow."

¶ 8. Jones's wife testified on behalf of her husband. Because the Joneses' house was near the Fergusons' house, she could hear the commotion, but she was not an eyewitness. She testified that she heard one shot, then five shots that followed. She admitted that, other than hearing the gunshots, she was unable to discern what had happened at the Ferguson residence. Mrs. Jones said that her husband came home with a black eye, a broken nose, and a bloody shirt. Mrs. Jones described the speech impediment Jones suffered following a stroke in 1988. Mrs. Jones said that he talks slow, and when he gets upset he says the opposite of what he means.

¶ 9. According to Jones's testimony, he had not had any encounters with the Fergusons in several years, except to say "Hello" to them. He denied confronting Steve and Tammy that day and said that Ray had put him in a headlock on three prior occasions. Jones also denied that he had been drinking. Jones testified that he was on his way to his son's house to get a lawn mower. When he approached the Fergusons' house, Ray ran out and flagged him down. Ray entered Jones's truck, tried to bend Jones over, put him in a headlock, and started beating him with his fists. Jones said that someone was beating him on the back as well. He said that his pistol was in the scabbard next to him, and he reached for it. One gunshot was fired, but Jones testified that he was unaware of who shot the pistol because his face was bloody. Jones confirmed that he called the sheriff's office and saying that he killed a fellow, but he said he did it because Ray's wife called and told him, "You killed Ray."

¶ 10. On the evidence that was presented at trial, the jury discounted Jones's version of the events and accepted the State's evidence. Jones appeals, claiming that he received ineffective assistance of counsel.

ANALYSIS

WHETHER JONES RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 11. For a successful claim of ineffective assistance on direct appeal, the appellant must show that the record affirmatively shows ineffectiveness of constitutional dimensions, or that the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Read v. State, 430 So.2d 832, 841 (Miss.1983). The question presented is not whether trial counsel was *559 ineffective "but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial, sua sponte on the basis of trial counsel's performance." Colenburg v. State, 735 So.2d 1099, 1102(¶ 8) (Miss.Ct.App.1999). Such performance must be "so lacking in confidence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice." Parham v. State, 229 So.2d 582, 583 (Miss.1969).

¶ 12. In assessing whether Jones received ineffective assistance of counsel, this Court must determine whether counsel's performance was deficient, and whether the deficiency was so substantial that it deprived the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 13. Jones argues that his trial counsel was ineffective in permitting the State to allow prior bad acts into evidence. See M.R.E. 404(b). The State elicited testimony from Steve about difficulties in the past. At trial, there was testimony concerning a confrontation between Jones and the Ferguson family in 1996. During this occasion, the Fergusons were riding four-wheelers on a dirt road near Jones's house. According to Steve, Jones pulled a gun on Ray and told him he was going to kill Ray one day. On cross-examination, Steve said that Jones threatened "everybody," and Steve called Jones a "bully." Glenda Ferguson testified that Jones objected to the Fergusons' "riding [their] four-wheelers and three-wheelers and things." She testified that Jones wanted to "rule the community" and threatened Ray with the same gun that ultimately killed Ray.

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Related

Bennett v. State
18 So. 3d 272 (Court of Appeals of Mississippi, 2009)
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Bluebook (online)
911 So. 2d 556, 2005 WL 704149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-state-missctapp-2005.