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Jones v. State

Supreme Court of Mississippi, En Banc

September 6, 2018

FRANKIE T. JONES a/k/a FRANKIE TERRELL JONES a/k/a FRANKIE JONES
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT 01/20/2017

          CALHOUN COUNTY CIRCUIT COURT. HON. JOHN KELLY LUTHER TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: BENJAMIN CREEKMORE THAD MUELLER JEFFREY WALDO

          ATTORNEY FOR APPELLANT: OTTOWA E. CARTER, JR.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOE HEMLEBEN

          DISTRICT ATTORNEY: BENJAMIN CREEKMORE

          COLEMAN, JUSTICE.

         ¶1. Frankie Terrell Jones was indicted for one count of first degree murder of Billy Ray Covington and one count of felon in possession of a firearm. A Calhoun County jury found Jones guilty on both counts, and the trial court sentenced him as a habitual offender under Mississippi Code Section 99-19-81 to life for the murder conviction and ten years for the felon in possession of a firearm conviction, with the sentences to be served concurrently. Jones appeals. Discerning no reversible error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On July 10, 2015, Jones invited Ashley Hobson and her roommate Hannah Walls to his camper trailer in Pittsboro, Mississippi. Jones, who was Hobson's drug dealer, told her he would give her and Walls some drugs and he planned to get more. That evening, Hobson and Walls went to Jones's trailer and spent the evening drinking and getting high. For entertainment, Jones and Walls fired gunshots outside the trailer. Hobson described the gun as black and explained it was not a revolver. Hobson and Walls spent the night at Jones's trailer.

         ¶3. The next morning, Jones awoke Walls and asked her to take him to Mantee, Mississippi. Walls refused and went back to sleep. Jones then awoke Hobson and asked her to take him to Mantee to get some drugs. Hobson responded that she would if Jones provided gas and allowed her to use the drugs. Hobson told Jones that she had to go to her house to pay rent to her landlord. Jones and Hobson then left in her Nissan Xterra SUV and went to her house, which is near Buck's One Stop, a gas station in Calhoun City.

         ¶4. Meanwhile that same morning, Marion Armstrong was driving into Calhoun City and saw Covington. Covington flagged down Armstrong and asked him for a ride. Armstrong complied and dropped off Covington at a church near Buck's. Covington was seen on video surveillance walking across Buck's parking lot at 9:54 a.m. Covington was wearing a white shirt, red tennis shoes, and a ball cap.

         ¶5. Around the same time, Jones and Hobson approached Buck's and Jones spotted Covington. Jones asked Hobson to stop and told her that he owed Covington "some dope." Jones asked Covington if he wanted to ride with them to get some drugs. Covington agreed and got in the back seat. They left and proceeded to County Road 308. While driving, Jones and Covington got into an argument about the drugs that Jones owed Covington. The argument escalated. Jones leaned over the front seat and hit Covington. Hobson told them, "If ya'll are going to fight, get out[.]" Hobson then pulled over on County Road 308. Jones and Covington exited the SUV and fought in the road and on the roadside. During the fight, Covington got on top of Jones, and Hobson told Covington to get off him.

         ¶6. Covington got up and began to walk away. The pair continued arguing. Jones became angry and loudly told Covington, "I'm going to kill you. I'm going to kill you." Hobson told Jones, "Come on, let's go." Hobson, who had remained in the driver's seat the entire time, then heard a gunshot. Hobson saw that Jones had shot Covington in the back of the head as he was walking away. At trial, Hobson testified that she saw Jones shoot Covington in the back of the head and identified Jones as the shooter in the courtroom. After Jones had shot Covington, she saw Covington's "knees buckle and him fixing to hit the ground." Hobson then heard at least four more gunshots.

         ¶7. Hobson then told Jones to get in the SUV because the police were coming. Jones did so and they went to Hobson's house. Jones told Hobson, "if you be quiet, everything will be okay" and "[y]ou won't end up like Billy Ray [Covington]." After paying Hobson's rent to her landlord, they went to a store and then to Mantee. There, they bought some drugs and then stopped at a liquor store. After buying liquor, Jones and Hobson returned to Jones's trailer. Hobson dropped off Jones and picked up Walls. Hobson and Walls left and went to Grenada to get manicures, to shop, and to get some money from Hobson's child's father. Afterward, they returned to their house.

         ¶8. When Hobson and Walls arrived at their house, Jones was there. Hobson removed everything from her SUV that could implicate her in Covington's murder, including clothes and CDs. Hobson burned the items she had removed from her SUV in a burn pile in her yard because she was concerned that Covington might have touched something. After burning everything, Hobson left to go to her "sugar daddy's house." On the way, Hobson stopped at a car wash and cleaned the inside of her SUV because she was scared the police might find out what had happened.

         ¶9. Earlier that same morning, on July 11, 2015, two individuals, who were riding all- terrain vehicles on County Road 308, discovered a body in the ditch alongside the road. The individuals called an emergency medical responder with the local fire department to report the body. The emergency medical responder then called 911 at 10:36 a.m. to report the body. At 10:38 a.m., dispatch for the Calhoun County Sheriff's Office advised Chief Deputy and Investigator Dean Poyner that a body had been found in a ditch on County Road 308.

         ¶10. Chief Deputy Poyner arrived to the scene and immediately recognized the body as Covington, whom he had known for years. Covington was found dead and lying face down in the ditch, wearing the same clothes and cap that had been depicted in the Buck's surveillance video. Chief Deputy Poyner observed several gun casings around Covington. Covington had seven gunshot wounds, including gunshots to his head, neck, torso, back, and extremities. An autopsy on Covington revealed that the cause of death was multiple gunshot wounds, and the manner of death was homicide.

         ¶11. Cory Burrow, an investigator with the Mississippi Bureau of Investigation, assisted in the investigation. Investigator Burrow learned that around 10:25 a.m., a witness on County Road 308 had heard approximately six gunshots. Law enforcement developed Jones as a possible suspect. On the day of the murder, Jones voluntarily went to the sheriff's office at approximately 7:00 p.m. and submitted to an interview. Chief Deputy Poynor observed that Jones's left eye was "really bad red." Investigator Burrow also observed that Jones's eye was bruised and bloodshot, which appeared to be a result of a fight. Jones waived his Miranda[1] rights and told law enforcement officers that he had been with Hobson earlier that day.

         ¶12. Law enforcement conducted a series of interviews with Jones over the course of several days. During the investigation, Jones admitted to officers that he owned a .40 caliber pistol. Jones called his mother and informed her where the pistol was located. Chief Deputy Poyner then retrieved the pistol from Jones's mother. Chief Deputy Poynor showed the pistol to Jones. Jones identified the pistol and claimed ownership of it. Because Jones had a prior felony conviction, officers charged Jones with felon in possession of a firearm. Chief Deputy Poynor had the pistol tested, but it did not match the casings found at the crime scene, and it was determined that it was not the murder weapon.

         ¶13. During the investigation, officers also learned that Jones and Covington had been in an argument days prior to the murder. Jones informed officers he and Covington were friends, but there had been a bad drug deal between them and he had tried to make it right by giving Covington some better drugs. Jones admitted that he had purchased a .40 caliber gun on Friday, the day before the murder. Jones also admitted he owned another small handgun, but he did not know where it was located. Jones told officers that he had been with Hobson and Walls doing drugs in the hours prior to Covington's death. Jones also said that, on the morning of Covington's death, he and Hobson had gone to Mantee in Hobson's SUV to buy more drugs. Jones, however, denied killing Covington.

         ¶14. Hobson gave law enforcement two conflicting written statements. The first statement did not implicate Jones in Covington's murder. The second did implicate Jones in Covington's murder. Hobson explained that she had decided to provide more information in her second statement because her conscience was bothering her. Hobson also explained that she was scared of Jones, who could "be a little crazy." During the investigation, Chief Deputy Poynor went to Hobson's residence and observed a burn pile beside her house. Hobson was arrested for having been an accessory after the fact.

         ¶15. Jones was indicted for the first degree murder of Covington as well as felon in possession of a firearm. The jury found Jones guilty on both counts. The trial court found that Jones was a habitual offender under Mississippi Code Section 99-19-81 (Rev. 2015). The trial court sentenced Jones as a habitual offender to life for first degree murder and ten years for felon in possession of a firearm. Jones appeals, raising the following three issues:

I. Whether the trial court erred when it did not sustain Jones's Batson[2]challenge.
II. Whether the evidence was insufficient to sustain the verdict.
III. Whether Jones was denied effective assistance of counsel because no cautionary jury instruction regarding accomplice testimony was submitted to the trial court.

         DISCUSSION

         I. Whether the trial court erred when it did not sustain Jones's Batson challenge.

         ¶16. The State used its first three peremptory strikes against Juror 5, Shauntika McKinney; Juror 7, Rochelle Glaspie; and Juror 8, Stormy Cruthirds, effectively excluding three out of four potential African-American jurors. The State used its next two strikes against Juror 12, a Middle-Eastern male named Abdulrahman Alamry, and Juror 13, Amanda Burnett, a white female.

         ¶17. After the State tendered twelve jurors to the defense, counsel for the defense objected, stating, "Your Honor, at this time I would like to make a Batson challenge. We've got five black folks in there, and four of those were struck." The trial court asked defense counsel to make a record. Defense counsel pointed out that the State's first strikes were against Jurors 5, 7, and 8, and that each of them was African American. Defense counsel mistakenly believed the State's fourth peremptory strike was used against an African-American male, Juror 12, Alamry. However, the clerk and sheriff corrected Jones's counsel, pointing out that Alamry was actually from Yemen.

         ¶18. The trial court, recognizing that the State had struck three out of four potential African-American jurors, requested race neutral reasons for the strikes. The trial court asked if there was any dispute about the numbers. The State responded:

You know, I don't dispute it. I didn't come in here knowing what their races are with the exception of juror number 5 and juror number 8. I knew that those were African-American individuals just from recollection. I will say that I don't believe a Batson pattern has been established, but I do have race neutral reasons for each one of them.

         ¶19. The trial court then heard the State's reasons for striking the potential jurors. The State explained:

According to law enforcement, we have prosecuted many McKinneys, known to be bootleggers; and we asked the question. They didn't respond. Juror number 7, Glaspie, is a common name. We've prosecuted many of those family members. We asked the question. He did not respond. On juror number 8, this is more of his attitude as a juror. When we came in, his body language and the way he communicated, his personality, he had his arms crossed looking at me shaking his head, no; and I just don't feel comfortable allowing a juror with that kind of body language to serve on one of my juries.

         ¶20. In response, defense counsel stated:

Your Honor, it could be just like the Jones[es] and Jones[es]. I don't know if these folks were related. They were asked the question, and they didn't respond. If he wanted to ask them directly, he could have called on that juror number and specifically asked them during the voir dire, and he failed to do that. There was no response on anything from any of these; and three out of four blacks were challenged, Your Honor.

         ¶21. The trial court initially did not recall Juror 8 but then agreed with the State's characterization, stating "I don't know if it was so much contempt for the prosecutor, but the whole process. He was not happy to be here and didn't mind people knowing about it, anyway." The trial court found that a pattern had been shown but that the State had offered race neutral reasons for striking Jurors 5, 7, and 8. The trial court continued: "At this time I'm going to allow the State's . . . ."

         ¶22. The next day, the trial court returned to the Batson issue, stating:

Yesterday in jury selection there was a Batson challenge made to the State's jury selection process. At that time I think the record will show that three --wasn't very deep into the jury selection process; and the State had used three of its challenges to challenge African-American jurors. At that time I found that there was a prima facie case of discrimination, or I don't know the proper word. I had asked the State to provide race neutral reasons for that selection. They did provide race neutral reasons, which I found was acceptable. To make the record complete I want it to show the final makeup of jurors: 14 members, 12 regular jurors and 2 alternates. There are fourteen members on the jury panel, 3 of which are obviously African-American; and I believe my records indicate that of the 14 potential strikes that the State had, 12 on the regular jury panel and 2 on the alternates, is they used 3 of those 14 potential strikes against African-American jurors.

         ¶23. After the State and defense finally rested, defense counsel renewed its Batson challenge. The trial court denied the challenge, explaining:

The [c]ourt, having made a further record on the Batson challenge, indicated that the State was afforded a total of 14 strikes, peremptory strikes, in this case. Three of that 14 were used against African-Americans. The final panel as it was seated included three African-Americans out of the total jury panel. My ruling remains the same on the Batson issue.

         ¶24. On appeal, Jones argues that the State unconstitutionally struck African-American jurors with unsupported claims that they were related to individuals previously prosecuted or convicted of crimes.

         A. Standard of Review

         ¶25. "Th[e] Court reviews a trial court's ruling on a Batson challenge with great deference and will not overturn the trial court's ruling unless it is clearly erroneous or against the overwhelming weight of the evidence." Pruitt v. State, 986 So.2d 940, 942 (¶ 8) (Miss. 2008). In Cox v. State, 183 So.3d 36, 52 (¶ 54) (Miss. 2015), the Court explained that when reviewing Batson rulings:

a reversal will only occur if the factual findings of the trial judge appear to be clearly erroneous or against the overwhelming weight of the evidence. On appellate review, the trial court's determinations under Batson are accorded great deference because they are based, in a large part, on credibility. The term great deference has been defined in the Batson context as meaning an insulation from appellate reversal any trial findings which are not clearly erroneous.

Cox, 183 So.3d at 52 (¶ 54) (internal quotations and citations omitted).

         ¶26. The Court explained that a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. Id. The Court recognized that deference to trial court findings on the issue makes particular sense in the Batson context because evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial court's province. Id. (citing Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Finally, the Court recognized that the United States Supreme Court had added that in the absence of exceptional circumstances, it would defer to the trial court. Id. (citing Hernandez v. New York, 500 U.S. 352, 365 (1991)). "[T]here is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error to th[e] Court." Birkhead v. State, 57 So.3d 1223, 1231 (¶ 28) (Miss. 2011) (quoting Juarez v. State, 965 So.2d 1061, 1065 (Miss. 2007)); see also States v. State, 88 So.3d 749, 755 (¶ 25) (Miss. 2012) (same).

         B. Batson's ...


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