238 So. 3d 1235
Miss. Ct. App.2016Background
- On July 14, 2012 in Columbus, MS, an earlier fistfight occurred between Joel Jones and Alvin Johnson; later Jones, with passengers Deandre Tillman and Taylor Conner, returned in a car and a shotgun was brandished.
- That evening Jones’s car approached a group including Zach Johnson and Tomarcas Thomas; shots were fired and Zach was blinded and Thomas wounded.
- Witnesses conflict: Zach, Thomas, and another witness identified Jones as the shooter; Glenn and Tillman testified Conner had the shotgun and was the shooter; Tillman testified for the defense that Conner shot.
- Jones was indicted on two counts of aggravated assault (and one count of intimidating a witness, of which he was acquitted) and tried as a principal; the State requested an accomplice-liability instruction and a cautionary instruction regarding accomplice testimony.
- Jones was convicted on both aggravated-assault counts and sentenced to consecutive terms totaling two twenty-year sentences (one with partial suspension and post-release supervision); he appealed claiming (1) constructive amendment by the accomplice instruction, (2) lack of evidence to support that instruction, and (3) error in giving the State’s cautionary accomplice testimony instruction.
Issues
| Issue | Plaintiff's Argument (Jones) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether accomplice-liability jury instruction constructively amended the indictment | Instruction expanded liability beyond the indictment (which charged Jones as principal) and deprived him of notice/due process | Accomplice liability is covered by statute and case law; an accomplice may be indicted as principal; instruction was permissible | Procedurally barred (no timely objection) and on the merits: no constructive amendment; instruction permissible when supported by evidence |
| Whether evidence supported accomplice-liability instruction | Evidence showed State’s theory was Jones as shooter; accomplice instruction was unsupported | Conflicting testimony (multiple witnesses identifying Jones and others identifying Conner) and facts (presence, involvement, flight, arrests) provided a factual basis for accomplice liability | Evidence supported the instruction; trial court did not abuse its discretion |
| Whether cautionary instruction on accomplice testimony (S-6) was improper because Tillman’s testimony was corroborated | The cautionary instruction was unnecessary and inappropriate (Tillman was corroborated and had nothing to gain) | Trial court may give the cautionary instruction in its discretion; language limited to uncorroborated portions; possible motive exists | Trial court acted within discretion; instruction permissible |
| Procedural bar to appellate review of unobjected-to jury instruction | N/A (procedural point) | Failure to object at trial bars appellate review | Issue was procedurally barred; court reviewed alternatively and found no merit |
Key Cases Cited
- Neal v. State, 15 So. 3d 388 (procedural bar for failure to object to jury instructions)
- Smith v. State, 835 So. 2d 927 (procedural-objection rule cited)
- Graham v. State, 185 So. 3d 992 (constructive amendment doctrine)
- Johnson v. State, 956 So. 2d 358 (accomplice instruction permissible when evidence supports it; accomplice indicted as principal under statute)
- Pratt v. State, 870 So. 2d 1241 (accomplice liability instruction support requirement)
- Williams v. State, 803 So. 2d 1159 (instructions must fairly announce law and create no injustice)
- Campbell v. State, 125 So. 3d 46 (jury-instruction review standard: abuse of discretion)
- Hooker v. State, 716 So. 2d 1104 (aider-and-abettor liability principle)
- Flynt v. State, 183 So. 3d 1 (jury resolves factual disputes)
- Stribling v. State, 81 So. 3d 1155 (discretion to give cautionary instruction even if accomplice testimony is corroborated)
- Milano v. State, 790 So. 2d 179 (adoption of Fifth Circuit aiding-and-abetting pattern instruction)