JAMES DEVON BROWN A/K/A JAMES D. BROWN A/K/A JAMES BROWN APPELLANT
STATE OF MISSISSIPPI APPELLEE
JACKSON COUNTY CIRCUIT COURT HON. KATHY KING JACKSON TRIAL
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: ANGEL DANIELLE PATANO-MYERS
BARNES, C.J., TINDELL AND McCARTY, JJ.
On August 30, 2017, James Devon Brown was convicted of
aggravated domestic violence with habitual offender status.
He was sentenced to life in prison without eligibility for
parole. Brown now appeals the trial court's judgment,
asserting the following assignments of error: (1) the trial
court erred by refusing his lesser-included offense jury
instruction; (2) the indictment was insufficient; (3) he was
denied his right to a speedy trial; and (4) the sentence
imposed by the trial court was improper.
For the following reasons, the judgment is affirmed.
James Devon Brown lived with his girlfriend, Lamonica Bodie,
at her home in Gautier, Mississippi. He was unemployed. On
the morning of February 3, 2016, Lamonica left the home to
give a friend a ride to the bus station. Lamonica did not
tell Brown what she was going to do. That same morning Brown
left the home in search of a job. While driving, Brown saw
Lamonica in her car with another man. Brown began to make
repeated phone calls to Lamonica. Through a serious of short
phone calls-initiated by Brown and ending with Lamonica
hanging up-they arranged to meet back at Lamonica's
Once there Lamonica and Brown discussed their relationship.
While folding laundry in the bedroom, Lamonica told Brown she
wanted to end the relationship. She then asked him to move
out. Brown asked Lamonica if he could sleep on the couch
until he got his tax return money. Lamonica said no.
Brown suddenly took off his shirt and said, "I don't
have anything to lose." Lamonica, feeling uncomfortable,
tried to reach for her keys and cellphone. Brown grabbed her
from behind and slid his forearm around her neck. As Lamonica
tried to pull away, his grip tightened. Brown's arm
constricted, and he "was choking [Lamonica] more."
Lamonica said at first she could breathe "a little
bit." However, "all of a sudden it got tighter and
tighter and [she] couldn't breathe." Lamonica
testified that as Brown's grip got tighter she "just
knew [she] was going to die." The pair then collapsed in
a heap on the floor.
During the struggle Lamonica's phone rang, but she could
not answer it. Lamonica convinced Brown to let her text the
caller to see what the person wanted. Instead, Lamonica
texted her mother and told her to call 911. Unfortunately,
Lamonica's mother never received the message. Lamonica
was unsure whether or not she lost consciousness during the
attack. Eventually, Lamonica was able to comfort Brown by
rubbing his head, ending the struggle. Brown then told her to
"tell them somebody else did this" to her. He then
left he house, and Lamonica went inside the bathroom and
called 911. The dispatcher testified that during the call
Lamonica's voice was "really strained."
Officer Daniel Mathis responded to the call. When he arrived
Lamonica was crying and upset. She complained that her head
hurt and her throat was sore. Officer Mathis called for an
ambulance. Lamonica told the officer that Brown had choked
her in the bedroom during a physical altercation. Officer
Mathis noticed and photographed extensive bruising on both
sides of Lamonica's neck and burst blood vessels in both
eyes. The bruising and burst vessels worsened over the
Lamonica provided Officer Mathis with a description of
Brown's car. Several minutes later, officers pulled Brown
over and arrested him. Lamonica was transported via ambulance
to Singing River Hospital, where she was examined by Dr.
Steven Boskovick. Dr. Boskovick testified that Lamonica's
injuries were consistent with someone who had been strangled.
Lamonica later signed an affidavit stating that the incident
was a misunderstanding, and that she no longer wished to go
along with or be a part of any prosecution. She said that
this affidavit was "before [she] understood what the
consequences [were] going to be."
During trial, Brown testified in his own defense. He swore he
never put a hand on Lamonica. He stated that he did not
strangle her and that they had never been in a physical
altercation. His theory was that perhaps a man named Marcus
did it. Brown requested that the jury be given a
lesser-included offense instruction on simple domestic
violence. The trial court denied Brown's request.
The lesser-included offense instruction was not
During trial, Brown requested a lesser-included offense
instruction on simple domestic violence. Whether a defendant
is entitled to a lesser-included offense instruction is a
question of law. Downs v. State, 962 So.2d 1255,
1258 (¶10) (Miss. 2007). This Court reviews questions of
law de novo. Id.
A defendant has an "absolute right" to a jury
instruction for a lesser-included offense if the evidence
supports such an instruction. Id. at 1260
(¶22). Failure to give such an instruction when
warranted is reversible error. Id. Evidence supports
an instruction of a lesser-included offense if, when viewed
in the light most favorable to the party requesting the
instruction, a reasonable juror could not exclude the
lesser-included offense beyond a reasonable doubt. Taylor
v. State, 577 So.2d 381, 383 (¶6) (Miss. 1991).
Alternatively, if the evidence can only support the principal
charge, then the lesser-included offense should be refused.
Id. at (¶11).
The question is then whether Brown was entitled to the
lesser-included instruction. Under the plain language of the
law, he is not. A person is guilty of aggravated domestic
violence when they strangle, or attempt to strangle, a person
they are in a current or former dating relationship with.
Miss. Code Ann. § 97-3-7(4)(a)(iii) (Rev. 2014).
"Strangle" is defined in the Code as
"restrict[ing] the flow of oxygen or blood by
intentionally applying pressure on the neck, throat or chest
of another person by any means or to intentionally block the
nose or mouth of another person by any means." Miss.
Code Ann. § 97-3-7(9)(a) (Rev. 2014).
Brown's proposed jury instruction provided that if the
jury found Brown "attempted to cause or purposely,
knowingly or recklessly caused bodily injury to Lamonica
Bodie, or . . . attempted physical menace to put Lamonica
Bodie in fear of imminent serious bodily harm" then it
should find him guilty of Simple Domestic
Our Supreme Court has held that "where an altercation
begins with a simple assault but, as a matter of law,
escalates in a continuous sequence of events to an aggravated
assault, the simple assault is subsumed into the aggravated
assault." Downs, 962 So.2d at 1262 (¶29).
Further, our Supreme Court has also "upheld the refusal
of a trial court to give a lesser-included offense
instruction on simple assault when the evidence clearly
supported the crime of aggravated assault." Id.
If a reasonable juror could, viewing all of the evidence in a
light most favorable to Brown, find him guilty of simple
domestic violence beyond a reasonable doubt, the instruction
should have been included. In weighing whether to grant the
lesser-included instruction, the trial court stated:
I have tried to look at the evidence in the light most
favorable to the defendant, how a jury could possibly find
him guilty of the lesser-included offense. The testimony is
clearly that, from the victim, that he choked her, if not to
unconsciousness, almost to unconsciousness. The
defendant's testimony is that he never touched her.
Strangulation automatically falls under aggravated domestic
violence. In this case there was evidence Lamonica was
strangled, meaning section 97-3-7-(4)(a)(iii) was
appropriate. There was no evidence of simple domestic
violence. Brown only offered evidence that he did not do
Brown initiated the altercation by grabbing Lamonica from
behind and putting his arm around her neck. Lamonica
testified that this limited her breathing. Brown continued to
tighten his grip to the point where Lamonica could not
breathe. Brown's actions fall within the statute's
definition of "strangle."
Because a reasonable jury could not have found Brown guilty
of simple domestic violence, the trial court's rejection
of a lesser-included instruction was proper.
The indictment was properly amended.
On the day trial was set, Brown rejected the State's plea
offer. The State then requested another continuance and moved
to amend the indictment against Brown to change his status to
a habitual offender pursuant to Mississippi Code Annotated
section 99-19-83 (Rev. 2015). Brown filed a pro se motion
objecting to the habitual offender amendment. The motion to
amend was granted.
Sufficiency of Indictment
Brown argues that the State's amended indictment charging
him as a habitual offender was "fatally defective"
under Rule 14.1 of the Mississippi Rules of Criminal
Procedure. Whether an indictment is so flawed as to require
reversal is a question of law. Brown v.
State, 934 So.2d 1039, 1043 (¶16) (Miss. Ct.
App. 2006). Rule 14.1 states that prior convictions used for
enhanced punishment must be identified in the indictment
the name of the crime, the name of the court in which each
such conviction occurred, and the cause number(s), the
date(s) of conviction, and, if relevant, the length of
time the accused was incarcerated for each such
14.1(b) (emphasis added). Brown argues that the State's
failure to specify the length of time he was actually
incarcerated for his previous offenses invalidates the
Yet, the new criminal rules were not in effect at the time of
Brown's amended indictment. The indictment was amended in
February 2017, four months before the Rules went into effect.
Instead, the applicable rule is Rule 11.03 ...