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Jenkins v. State

Court of Appeals of Mississippi

November 19, 2019


          DATE OF JUDGMENT: 08/28/2017






          WESTBROOKS, J.

         ¶1. Bobbie Lewis Jenkins appeals his conviction for second-degree murder. His appointed counsel argues that the Hinds County Circuit Court erred when it (1) gave an incomplete instruction on accomplice culpability; (2) did not allow Jenkins's trial counsel to impeach an eyewitness with a picture after he testified that he was unfamiliar with firearms; and (3) allowed a law-enforcement officer to testify that Jenkins did not give a statement. In a pro se supplemental brief, Jenkins argues that he was deprived of (4) his statutory right to a speedy trial; and (5) his constitutional right to testify. After careful review, we find no reversible error. Consequently, we affirm the circuit court's judgment.


         ¶2. Jenkins's conviction stems from events that occurred on October 21, 2014, at the Cypress Point Apartments in Jackson, Mississippi. Responding to a report of a shooting, emergency responders found Moyanna Johnson's body on the floor of his apartment. He had been shot twice in the chest. The resulting investigation immediately pointed toward Jenkins. Although he turned himself in the following morning, he chose not to give a statement. Two eyewitnesses later gave statements implicating Jenkins. They also identified him from photo lineups.

         ¶3. In January 2015, Jenkins was indicted and charged with first-degree murder. After Jenkins was allowed to bond out of jail, his attorney filed six successful motions to continue the trial. The circuit court also granted two joint motions for continuances. His three-day trial finally began on July 24, 2017.

         ¶4. The prosecution called seven witnesses during its case-in-chief, which was bookended by two eyewitnesses. For the most part, eyewitnesses Marcus Collins and Jeremy Wilson provided consistent testimonies. They both said that Jenkins went to Johnson's apartment and asked a question.[1] Collins said that Jenkins and Johnson eventually began to argue, but Wilson said otherwise. Notwithstanding that discrepancy, they both testified that Jenkins was standing outside of Johnson's apartment when he said something along the lines of "you think I'm playing, "[2] grabbed a gun[3] from someone to his left, and fired around five shots into Johnson's apartment. The two men were near Jenkins when he was standing outside of Johnson's apartment, but neither Collins nor Wilson knew them. Defense counsel asked both of them about a "light skinned" male. Collins did not remember anyone by that description, but Wilson said that Jenkins got the pistol from "that light skinned person." Notwithstanding the variations in their testimonies, Collins and Wilson were both adamant that Jenkins was the only person who shot into Johnson's apartment.

         ¶5. The prosecution also called three law-enforcement officers who testified about their participation in the case. Officer Bruce Broach testified that he secured the scene, placed cards next to the five shell casings that he saw, and noted the other evidence that he found. Crime Scene Investigator Mamie Barrett explained that four shell casings were recovered outside of Johnson's apartment, and one was approximately six feet inside of the apartment. She also testified that she found one bullet in the right side of the exterior door jamb. She recovered two more bullets in the back wall of the apartment. Detective Ella Thomas testified that she was in charge of the investigation, which indicated that although two people were with Jenkins-one of whom was described as tall and "bright skinned or light skinned"-her investigation indicated that Jenkins was the only person who shot into Johnson's apartment.

         ¶6. The prosecution's other two witnesses provided expert testimony. Dr. Brent Davis, a forensic pathologist, performed Johnson's autopsy. Dr. Davis testified that he recovered two bullets in Johnson's chest, and those gunshot wounds were the cause of Johnson's death. Felicia McIntyre, a forensic scientist specializing in firearm-and-tool mark identification, testified that she examined all five of the bullets and shell casings that were recovered. She explained that they were all the same caliber, the bullets were all fired from the same gun, and the shell casings were all ejected from the same gun. However, she said that "[t]here is no test to determine if a projectile originated in [a particular] cartridge case." In other words, she could not "put the bullet back into the casing." Even so, she opined that "the presence of a second gun is not likely."

         ¶7. After the prosecution rested its case-in-chief, defense counsel requested a directed verdict. The circuit court denied that motion. Defense counsel then rested without presenting any evidence, and the prosecution finally rested. The jury subsequently found Jenkins guilty of second-degree murder. After conducting a sentencing hearing, the circuit court sentenced Jenkins to forty years in the custody of the Mississippi Department of Corrections, with ten years suspended and thirty years to serve, followed by five years of "supervised probation." Following his unsuccessful post-trial motion, Jenkins appeals.


         I. Aiding and Abetting Instruction

         ¶8. Jenkins takes issue with Jury Instruction S-7, which read, "[I]f two or more persons engaged in the commission of the crime, then the acts of each on the commission of such crime are binding upon all, and all are equally responsible for the acts of each in the commission of such crime." According to Jenkins, Instruction S-7 was an incomplete and incorrect legal statement because it would allow the jury to find him guilty as an aider and abetter without necessarily finding that Jenkins had the requisite state of mind, which was that Jenkins had intended to kill or shoot Johnson. He reasons that the jury was misled into thinking that it could return a guilty verdict without finding beyond a reasonable doubt that he committed all elements of the offense. We review the circuit court's decision for abuse of discretion. Stanfield v. State, 269 So.3d 1188, 1190 (¶15) (Miss. 2019). "The instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Id.

         ¶9. Jenkins is correct that in and of itself Instruction S-7 does not follow the pattern instruction for aiding and abetting that the Mississippi Supreme Court adopted in Milano v. State, 790 So.2d 179, 185 (¶21) (Miss. 2001). The prosecution submitted a proper Milano instruction, but the circuit court refused it after defense counsel objected to it. But the hinge of propriety for an aiding and abetting instruction is whether it gives "the jury the option of convicting the defendant without first finding that the crime was completed." Brassfield v. State, 905 So.2d 754, 757 (¶9) (Miss. Ct. App. 2004). "Absent this deficiency, an aiding and abetting instruction does not constitute reversible error." Id. (collecting cases).

         ¶10. When the instructions in this case are read as a whole, Instruction S-7 did not allow the jury to find Jenkins guilty without finding that all elements of the offense were committed. As mentioned above, Jenkins was charged with first-degree murder. Instruction S-7 was particularly relevant to that charge based on the evidence that a "light skinned" male handed Jenkins the gun that he fired into Johnson's apartment. Said differently, Instruction S-7 was apparently intended to give the jury the option of finding Jenkins guilty of first-degree murder under the theory that Jenkins and the "light skinned" male premeditated to kill Johnson, and the "light skinned" male's part was to bring the pistol to Johnson's apartment.

         ¶11. But the jury found Jenkins guilty of second-degree murder. The jury was instructed that it could not consider second-degree murder unless it had found that Jenkins was not guilty of first-degree murder. Jury Instruction S-4 stated,

[A]cting with a depraved heart is when a person acts in a highly dangerous way [that] shows that the person does not care for the safety of human life. Even if someone does not intend to kill any particular person, he can still be guilty of murder if he acts with a depraved heart [and] a person is killed as a result.

         Our Supreme Court has explained,

The essential elements of depraved-heart, or "second-degree," murder are "the killing of a human being without the authority of law by any means or in any manner when done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual."

Montgomery v. State, 253 So.3d 305, 316 (¶42) (Miss. 2018) (quoting Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2015)). Thus, the jury was instructed on all elements of the offense, and the jury was separately instructed that it must find that Jenkins was guilty of each element beyond a reasonable doubt. Because the instructions, when read as a whole, fairly announce the law of this case, we are not persuaded by Jenkins's assertion.

         II. Impeachment of Wilson

         ¶12. While cross-examining Wilson, defense counsel asked him whether he was "familiar with guns[.]" Wilson responded, "No, sir. I don't deal with guns[, ] period." The prosecution objected to defense counsel's attempt to impeach Wilson with a picture of him that had been posted on social media. The picture "depicts two firearms that are located in [Wilson's] waistband . . . ." During a proffer outside of the jury's presence, Wilson said that he had BB guns when the picture was taken, they were not his BB guns, and they were tucked into his waistband so the picture would not include "the orange tip . . . to know that it was a fake BB gun." The circuit court ultimately granted the prosecution's objection to prevent defense counsel from impeaching Wilson with the pictures because ...

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