284 So.3d 862
Miss. Ct. App.2019Background
- On Oct. 21, 2014, Moyanna Johnson was found shot twice in his apartment; investigation focused on Bobbie Lewis Jenkins. Jenkins surrendered the next day but gave no statement.
- Two eyewitnesses (Marcus Collins and Jeremy Wilson) identified Jenkins in photo lineups and testified that Jenkins stood outside Johnson’s door, obtained a gun, and fired multiple shots into the apartment.
- Forensic testing showed five casings/bullets of the same caliber; a firearms examiner concluded all rounds were likely from the same gun and a second gun was unlikely.
- Jenkins was indicted for first-degree murder (Jan. 2015); after multiple continuances and a three-day trial (July 2017) the jury convicted him of second-degree (depraved-heart) murder.
- Sentence: 40 years (10 suspended), 30 years to serve, plus five years supervised probation. Jenkins appealed raising instructional, impeachment, testimonial‑silence, speedy‑trial, and right‑to‑testify claims.
Issues
| Issue | Plaintiff's Argument (Jenkins) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1) Aiding/abetting jury instruction | S‑7 was incomplete and could convict Jenkins as aider/abettor without finding requisite intent for murder | Jury instructions read as a whole properly stated law; other instructions required finding elements beyond a reasonable doubt | Court: No reversible error; instructions fairly announced law and jury convicted of second‑degree murder under proper instructions |
| 2) Impeachment of Wilson with social‑media photo | Court improperly barred impeachment after Wilson denied familiarity with guns; photo would undermine his credibility and aid defense | Admission of photo was collateral and more prejudicial than probative to guilt; court exercised discretion | Court: Exclusion was an abuse of cross‑examination scope but harmless given overwhelming evidence; no reversal |
| 3) Detective’s comments on Jenkins’s silence (post‑Miranda) | Comments constituted plain error and counsel ineffective for not moving for mistrial | Comments arose during defense cross‑examination to explain investigative gaps; not plain error and no prejudice to outcome; ineffectiveness better raised in PCR | Court: No plain error; no manifest miscarriage of justice; ineffectiveness claim deferred to post‑conviction relief |
| 4) Statutory speedy trial (Miss. Code § 99‑17‑1) | Trial occurred 856 days after arraignment; continuances were conspiratorial and lacked good cause | Continuances were largely defense‑requested (six) or joint (two); trial court’s “well taken” findings amount to judicial good‑cause findings | Court: Delays not attributable to State; statutory speedy‑trial claim fails |
| 5) Right to testify | Jenkins claims he did not know he could testify and counsel prevented him from doing so; lack of colloquy violated his rights | Record shows no express desire by Jenkins to testify; defense indicated he might testify only if cross‑examination failed; silence treated as waiver | Court: No denial of right to testify under facts; better to raise ineffective‑assistance claim in PCR if counsel prevented testimony |
Key Cases Cited
- Milano v. State, 790 So. 2d 179 (Miss. 2001) (pattern aiding‑and‑abetting instruction guidance)
- Brassfield v. State, 905 So. 2d 754 (Miss. Ct. App. 2004) (aiding/abetting instruction reversible‑error standard)
- Montgomery v. State, 253 So. 3d 305 (Miss. 2018) (definition/elements of depraved‑heart second‑degree murder)
- Dies v. State, 926 So. 2d 910 (Miss. 2006) (two‑step statutory speedy‑trial analysis)
- Swinney v. State, 241 So. 3d 599 (Miss. 2018) (plain‑error review and comment on post‑Miranda silence)
- Dizon v. State, 749 So. 2d 996 (Miss. 1999) (when Culberson colloquy required and remedy for denial of right to testify)
- Culberson v. State, 412 So. 2d 1184 (Miss. 1982) (trial‑court colloquy to record defendant’s waiver of right to testify)
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (presumption against waiver of fundamental rights from silent record)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (custodial‑interrogation warnings)
- Rock v. Arkansas, 483 U.S. 44 (U.S. 1987) (constitutional right to testify in one’s own defense)