OF JUDGMENT: 05/10/2018
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL
SR. TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
GEORGE T. HOLMES PHILLIP W. BROADHEAD.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL KAYLYN
BARNES, C.J., McDONALD AND C. WILSON, JJ.
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.
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.
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.
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.
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
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
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
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.
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.
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.
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.
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.
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
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.
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.
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. 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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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
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.