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Jones v. State

Court of Appeals of Mississippi

December 17, 2019


          DATE OF JUDGMENT: 05/10/2018





          McDONALD, J.

         ¶1. In 2018, Audrey Jones was convicted of robbing David McCullough and Charlotte Mears in their apartment and then kidnapping Charlotte by making her drive with him to an ATM to withdraw money. For the convictions on two counts of armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014), the Hinds County Circuit Court sentenced Jones to a twenty-five-year term, with ten years suspended and fifteen years to serve, and a consecutive thirty-five-year term, with ten years suspended and twenty-five years to serve, all in the custody of the Mississippi Department of Corrections (MDOC). The court placed Jones on five years of probation following each term. For the kidnapping conviction in violation of Mississippi Code Annotated section 97-3-53 (Rev. 2014), the court sentenced Jones to a thirty-five-year term in the MDOC's custody, with ten years suspended and twenty-five years to serve, and placed Jones on five years of probation. The circuit court set that sentence to run concurrently with his armed-robbery sentence of a thirty-five year term. Jones appeals. He argues that the court improperly admitted a photographic lineup and surveillance-video evidence in violation of the rules of discovery. He also claims that he was denied a fair trial when the court allowed the State to present evidence of another separate crime for which he had not been tried or convicted. After reviewing the record and relevant precedent, we find that the court erred in admitting the evidence of the second crime because its probative value was substantially outweighed by the undue prejudice caused to Jones. We therefore reverse Jones's convictions and sentences and remand for a new trial.


         ¶2. On April 16, 2016, a gunman followed Charlotte and her ex-husband and roommate David into their apartment. The gunman ordered them to get on the floor while he looked through the apartment. He found some laptops and bank cards and demanded their passwords and PIN numbers. Ultimately, he ordered David into the bathroom, took David's cell phone, and left the apartment with Charlotte.

         ¶3. The gunman forced Charlotte to drive her car to a bank and withdraw $500 from an ATM. This was captured on the bank's surveillance video. When the PIN number that David had given for his bank cards did not work, the gunman became angry and said he planned to return to the apartment and beat David. Meanwhile, David had left the bathroom and gone to other apartments to find help. At a neighbor's apartment, he was able to call his daughter and the police. Anxious about Charlotte's safety, David did not wait for the police to arrive. He drove around to find her himself.

         ¶4. After leaving the bank, Charlotte drove according to the gunman's directions. He ordered her to park, took the keys, and threatened to kill her if she left the car. He then got out of the car and went over a fence. When Charlotte realized that she was not far from her own apartment complex, she mustered the courage to get out and run. She waved down a vehicle driven by Tameka Reed and Gregory Scott. They took her home where she found the police and her daughter. Ultimately, David returned from his futile search and was reunited with Charlotte.

         ¶5. David and Charlotte told the police what had happened. They described the gunman as a black man who wore a black, green and yellow knit cap. The police inspected Charlotte's car and took fingerprints. They also fingerprinted the apartment and the iPad that the gunman had handled. The results of the fingerprint tests did not come back from the lab until the middle of the trial. None of the fingerprints matched Jones's.

         ¶6. On April 20, 2016, the police asked Charlotte to review two separate photographic lineups that did not include a picture of Jones, but she could not identify the gunman in either of them.

         ¶7. Incident to a subsequent robbery whose suspect was captured on surveillance footage at a bank and nearby gas station, police identified a suspect and a vehicle that belonged to Jones. After Jones was arrested, authorities executed a search warrant on Jones's home. They seized almost one hundred items, but nothing that belonged to Charlotte or David.

         ¶8. On April 29, 2016, the police asked David and Charlotte to review more photographic lineups. Charlotte refused, but David went and identified Jones as the gunman.

         ¶9. In November 2016, Jones was indicted and charged with two counts of armed robbery and one count of kidnapping. Jones filed a motion for discovery that, among other things, requested the disclosure of all physical evidence that would be used against him and any exculpatory material. Prior to trial, he also filed a motion in limine to exclude past criminal convictions, pending charges, and other evidence of prior bad acts.

         ¶10. On the first day of the trial, May 7, 2018, the State announced that it had just acquired the ATM video showing Charlotte's forced withdrawal. The State also told the court that it was still waiting on the test results of the fingerprints collected from an iPad at the victims' home. The State explained that all the evidence was not ready because as of the Friday before, Jones was contemplating pleading guilty. Jones's attorney said that he had no issue with the late disclosure of the ATM video because it had been referenced in discovery, and he just wanted to view it before making an announcement to the court. The video showed Charlotte driving in her car up to an ATM and withdrawing money. It was impossible to identify who was in the car with her. When the court reconvened, Jones's attorney announced that he was ready to proceed.

         ¶11. The court then considered Jones's motion to exclude evidence of other bad acts. The State told the court that at the time of Charlotte and David's robbery, there was a "crime spree" going on: there were other robberies in the same area, and a kidnapping and rape occurred where the perpetrator also had forced his way into people's apartments, placed one into a bathroom, threatened the other, and took bank cards. After Jones's attorney objected to any testimony regarding the other cases, the State said:

We weren't going to go into--these were the allegations, simply that there were several open cases going on at the same time in which the description and the MO [modus operandi] of the case -- commission of the case -- were very similar; and that in the last case, it resulted in the identification of the defendant; and that's how the arrest was finally made.

         The court accepted the State's representations and denied Jones's motion but cautioned the State to talk to its witnesses to insure that they did not "blurt out what the nature of the charges were." The State agreed, and the trial commenced.

         ¶12. Testifying for the State were the victims, David and Charlotte, the responding police officer Jennifer Avery, and Tameka Reed, who had picked up Charlotte and driven her home. David described what happened and continued that he had identified Jones as the gunman in a photographic lineup that was entered without objection. David also identified Jones in court.

         ¶13. When Charlotte testified, she described as a light-skinned black man with "little dreads on top of his head." She said he looked nice, and she could not believe he was doing this. She also identified Jones in court as the gunman.

         ¶14. During Charlotte's testimony, the State sought to enter the ATM video of her and the gunman's visit to the ATM. Jones's attorney objected, not because of any late disclosure, but because Charlotte, he argued, could not authenticate the video. The court overruled the objection, and the video was entered into evidence and played before the jury. While Charlotte is clearly shown on the video, it is impossible to determine the person in the passenger seat.

         ¶15. Charlotte also testified that on April 20, 2016, she visited police headquarters and spoke to Detective Maurice Young. She said she was presented a two-page photographic lineup but that she did not recognize anyone on them. The State then showed Charlotte a photographic lineup and sought to introduce it into evidence.[1] Jones's attorney objected that the photographic lineup had not been provided in discovery. The court overruled the objection and admitted the second photographic lineup into evidence. The lineup itself does not include Jones's picture, and Charlotte testified that she could not identify the gunman in the lineup.

         ¶16. Reed, whom Charlotte had flagged down for assistance, testified that when Charlotte got in her car, Charlotte said she had been kidnaped by a man with dreads. But Reed also admitted that she did not put that in the statement she gave to police on the day of the crime.

         ¶17. Prior to calling its next witness, outside of the presence of the jury, the State informed the court that the results of the fingerprint evidence had come in during lunch, and none of the fingerprints collected matched Jones's. Jones's attorney moved to dismiss the charges because the results had not been provided to the defense prior to trial. The State argued, among other things, that at the beginning of the trial Jones had agreed to proceed even though the fingerprint results had not yet been received. The court took the matter under advisement, but the issue was never revisited, and the fingerprint evidence was never introduced.[2]

         ¶18. The State's next three witnesses testified to evidence obtained through the investigation of the later robbery that bore some similarities to David and Charlotte's. None of the witnesses were involved in the investigation of David and Charlotte's robbery, and they had not been disclosed as potential witnesses during Jones's trial. Before the first witness, Detective Jamie White, testified, Jones's attorney objected and reminded the court of its ruling on Jones's motion in limine concerning evidence of other bad acts. Before ruling on the objection, the court asked the State to question White outside the presence of the jury. After the State complied, defense counsel additionally objected that the testimony was prejudicial and unnecessary. The court overruled the objection, and the jury was brought back to hear White's testimony in full.

         ¶19. White testified that he was not involved in the investigation of the crime against David and Charlotte, but he investigated a later robbery that occurred at the same apartment complex on April 25, 2016. White testified that both robberies involved the same modus operandi (MO) and he went further to describe what that MO was-namely, that a gunman approached victims from outside their apartments and then forced them inside; that he separated victims, putting one in the bathroom while threatening to kill the other; and that he took items like debit cards and demanded that the victims disclose the PIN numbers.

         ¶20. White went further to testify about his investigation of the later robbery. The victims of that robbery had described the gunman's clothing and later provided White their bank statements. From the statements, White determined that someone had attempted to withdraw money from a BankPlus ATM on Adkins Road in Jackson. White then secured surveillance footage from BankPlus and from a gas station across the street.[3]

         ¶21. White testified that the person depicted in the ATM video was wearing a jacket similar to the one described by the victims of the later robbery. From the gas station video, again using the victims' description of the jacket the gunman wore, White identified the type of car he concluded the suspect drove. From further investigation about the car, police identified and arrested Jones. Jones's attorney renewed his objections to the tapes, which were again overruled, and both videos were played for the jury. As the videos were being played, White described the events depicted in them. The ATM video clearly showed the face of the individual attempting to make the withdrawals. After White blurted out that the individual was Jones, defense counsel objected. The court sustained the objection and instructed the jury to disregard White's comment.

         ¶22. In addition to testifying to the content of the videos that were shown to the jury, White further pointed out that the person in the ATM video wore a t-shirt that said "Tuesday Morning" on it. Tuesday Morning is a retail store, and White testified that he followed up with the store and learned that Jones had previously worked there.

         ¶23. White went on to testify that during the investigation of the latter robbery, a search warrant was obtained for Jones's apartment. Among the items found was the jacket that White testified was the jacket worn by the suspect in the second robbery. White identified the jacket itself, which was admitted into evidence over Jones's objection.

         ¶24. White then testified that after Jones was arrested, authorities contacted the Mississippi Bureau of Investigation, which has access to driver's license records, to get a photo of Jones. Authorities then created a six person photographic lineup to be presented to the victims of the latter robbery. Notably, White was never shown the lineup that was presented to David to determine whether it was the one that White had generated.

         ¶25. On cross-examination, White admitted that the gas station video, the second ATM video, the pictures taken during the search, and the jacket were evidence obtained for another case altogether-not the case being tried. White also admitted that he was not sure if any of the items retrieved from the search were stolen from Charlotte and David.

         ¶26. The State next called Crime Scene Investigator Mamie Barrett, who conducted the search of Jones's apartment incident to the investigation of the latter robbery. Barrett testified that on April 28, 2016, she was tasked with executing a search warrant at the home of Audrey Jones. The State sought to enter photographs of the apartment and its contents, and Jones objected that the photographs were irrelevant. The court took out four photographs depicting several guns found in the apartment, as well as photographs of Jones's car, but overruled Jones's objection and allowed the rest. The forty pictures that remained depicted clothing, a pill bottle with someone else's name on it, iPads, an Apple laptop, several watches, an iron, an Xbox game system with someone else's name and address on it, money, and sunglasses. Also included was a picture of a small handgun; however, it was never identified by David or Charlotte as the one that the gunman used when he robbed them. Barrett testified that the serial numbers of the electronics she found in Jones's apartment did not match those of any known stolen items in any case.

         ¶27. The State also called Officer Dejohn Arterberry, who testified that on April 28, 2016, he had viewed the surveillance video from the gas station that was obtained in the investigation of the later robbery. Arterberry saw what the car looked like and began looking around various apartment complexes in the area of the robbery until he found the vehicle. He was told the apartment number of the owner and Arterberry proceeded there. He knocked on the door, and a young black male opened it. Arterberry asked him if he owned the vehicle, and the young man tried to close and lock the door. Officers then entered and apprehended Jones.[4]

         ¶28. After the State rested, the defense called no witnesses, and Jones elected not to testify. The jury instructions included a limiting instruction regarding the use of evidence of other bad acts. The jury deliberated and found Jones guilty of all charges.

         ¶29. Jones filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial in which he stated, among other things, that during discovery he was not provided with Charlotte's statements taken by the police and that the court had erroneously admitted White's testimony about "other unindicted and unrelated alleged crimes." The court denied Jones's motion. Jones now appeals and argues (1) that evidence of the Charlotte's photographic lineup and the surveillance videos and other evidence from the later robbery should have been excluded because they were not produced during discovery and (2) that the admission of other-bad-acts evidence violated his right to a fair trial.

         Standard ...

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