BOBBIE JENKINS A/K/A BOBBIE LEWIS JENKINS, JR. v. STATE OF MISSISSIPPI
NO. 2018-KA-00560-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
11/19/2019
DATE OF JUDGMENT: 08/28/2017
TRIAL JUDGE: HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: ROBERT SHULER SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 11/19/2019
WESTBROOKS, J., FOR THE COURT:
¶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
FACTS AND PROCEDURAL HISTORY
¶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
¶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
¶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.
DISCUSSION
¶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
¶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
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 “[i]t’s totally on a . . . collateral issue that [is] . . . far more prejudicial than probative of anything . . . with regard to the guilt or innocence of [Jenkins.]”
¶13. According to Jenkins, the circuit court’s decision effectively prevented him from presenting a defense. Jenkins notes that Wilson had testified that no one in Johnson’s apartment had a gun or removed one from the apartment after the shooting. He adds that “[t]he presence of guns inside the apartment may have provided another explanation of how
¶14. We do not conclude that the circuit court’s ruling prevented Jenkins from presenting a defense such that reversal is required on appeal. At no point had the defense even implied that Jenkins shot into the apartment because someone inside had a gun. Instead, the defense’s theory had been to focus on the concept that a “light skinned” male outside of the apartment was responsible for the shooting. At best, the circuit court’s ruling prevented the defense from impeaching Wilson’s credibility. Defense counsel should have been allowed to do that. “Any party, including the party that called the witness, may attack the witness’s credibility.” M.R.E. 607. Even so, “it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Goforth v. State, 70 So. 3d 174, 187 (¶57) (Miss. 2011). Based on the overwhelming and undisputed testimony and physical evidence in the case, the circuit court’s ruling was, at the most, harmless error.
III. Comments on Jenkins’s Right to Remain Silent
¶15. Next, Jenkins asserts that Detective Thomas’s comments during cross-examination constituted plain error because she twice testified regarding Jenkins’s post-Miranda silence.4
¶16. The following exchange occurred during Detective Thomas’s cross-examination:
Q: All right. And so - - and I know you weren’t present when the other witnesses testified, but let me give you a hypothetical. If one witness said my client had a revolver, okay, say, Marcus Collins, hypothetically speaking, is it your testimony that Jeremy Wilson would have said the same thing?
A: No. I can’t say that. I don’t know what they would have said. He gave the statement that they gave.
Q: Right.
A: And neither one of them said anything about a revolver.
Q: But both of their statements were consistent in specific detail, correct?
A: They gave events that happened, correct.
Q: In detail?
A: In their opinion - - in their recollection of what happened.
Q: Which you found to be credible or not?
A: I have no choice. I have to find them to be credible. Your client - -
Q: - - let me ask you this question - -
A: - - exercised his right to give a statement and did not provide one.
Q: You’re saying you have no choice but to find the witnesses credible? Is that your testimony?
A. They w[ere] there. They witnessed what happened.
Q: From your investigation were you able to identify who the other individuals were at the door at the time of the shooting?
A: No.
Q: But [someone] was described as a tall bright skinned or light skinned [male]? Do you recall that?
A: Yes.
Q: Were . . . Marcus Collins and Jeremy Wilson . . . shown a photo lineup of the other possible individuals that came to the house?
A. No. There was no way for me to show them a photo lineup without having any names or the other two objects identified. [The only person who could] identify those two subjects was your client[,] . . . and he exercised his right to remain silent and did not provide a statement.
(Emphasis added).
¶17. Jenkins’s trial counsel did not object to the testimony that his cross-examination elicited. “If no contemporaneous objection is made, the error, if any, is waived.” Robinson v. State, 247 So. 3d 1212, 1226 (¶27) (Miss. 2018). Nevertheless, Jenkins contends that the testimony at issue resulted in plain error. In Swinney v. State, 241 So. 3d 599, 605-06 (¶14) (Miss. 2018), the Supreme Court explained that:
The plain error doctrine is employed only in situations when a defendant’s substantive or fundamental rights are affected. Plain-error review is properly utilized for correcting obvious instances of injustice or misapplied law. For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.
“To determine whether plain error has occurred, the reviewing court must determine: (1) if
¶18. We do not find that plain error resulted from the testimony at issue. As mentioned above, it was elicited during defense counsel’s cross-examination. Essentially, defense counsel asked Detective Thomas why she had not investigated other potential suspects. As a result, she explained why she had been unable to do so—the only person who could have done so declined to steer her toward any other suspects. In light of the overwhelming evidence of Jenkins’s guilt, those two comments over the course of the three-day trial did not suggest that Jenkins was guilty because he declined to give a statement. See Swinney, 241 So. 3d at 609 (¶34). As the Supreme Court found in Swinney, “[w]e discern no manifest miscarriage of justice or that the fairness, integrity, or public reputation of the judicial proceeding was seriously affected.” Id.
¶19. As for Jenkins’s claim that defense counsel was ineffective because he did not move for a mistrial, such claims are generally “more appropriately brought during post-conviction proceedings.” Id. at 613 (¶58). We review ineffective-assistance claims on direct appeal only where “the record affirmatively shows ineffectiveness of constitutional dimensions,” or “the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed.” Id. The parties have not stipulated that the record is adequate to review this issue on direct
IV. Jenkins’s Statutory Right to a Speedy Trial
¶20. In his pro se supplemental brief, Jenkins argues that his conviction must be reversed because he was denied his statutory right to a speedy trial.
¶21. In Dies v. State, 926 So. 2d 910, 914 (¶8) (Miss. 2006), the Mississippi Supreme Court described the necessary two-step analysis:
The first step is to determine the total number of days between arraignment and trial. For this purpose, the date of arraignment is not counted but the date of trial and weekends are counted unless the 270th day falls on a Sunday. The second step is to consider each delay separately, because only those delays attributable to the State count toward the 270 days. For the second step this Court must determine which party is responsible for the delay and their reason.
(Citations omitted). None of the continuances were solely attributable to the prosecution.
V. Jenkins’s Right to Testify
¶22. Finally, Jenkins argues that he was denied the right to testify. He claims that he did not know he had a right to testify or that he could choose to testify despite his attorney’s advice not to. He also claims that his former defense attorney “did not allow him to testify . . . .”
¶23. Jenkins correctly states that the circuit judge never explained his right to choose to testify. After the prosecution rested and defense counsel unsuccessfully moved for a directed verdict, there was no colloquy between Jenkins and the circuit judge. Instead, the circuit court granted a recess so Jenkins and his attorney could “discuss how they were going to proceed.” Defense counsel then rested without presenting any evidence. For the first time
known [that] he could have testified in his own defense even though his attorney’s decision was that he doesn’t testify, he would have testified in his own defense, particularly where there were no witnesses at all called by his attorney to testify in support of his defense that he did not shoot anyone at all.
¶24. Among other cases, Jenkins cites Boykin v. Alabama, 395 U.S. 238, 242 (1969), in which the United States Supreme Court held, “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.” Boykin extended the principle to guilty pleas and “the privilege against compulsory self-incrimination[,] . . . the right to trial by jury[,] . . . [and] the right to confront one’s accusers . . . .” Id. at 243.
¶25. The State responds that because his defense counsel asked during voir dire whether the venire panel understood that Jenkins did not have to testify, Jenkins “must have also been aware that meant he had the right to testify.” Additionally, the State asserts that there is no indication that Jenkins wanted to testify, so despite the lack of a colloquy between Jenkins and the circuit judge, Jenkins waived the right to testify when Jenkins did not contradict his defense attorney after he rested without presenting any evidence. We also note that Jenkins did not raise this issue in his post-trial motion.
¶26. Mississippi’s jurisprudence on this issue has evolved from Culberson v. State, 412 So. 2d 1184 (Miss. 1982). During the hearing on his motion for a new trial, Culberson testified that he told his attorney that he wanted to testify, but his attorney never gave him an
¶27. Since the Supreme Court handed down Culberson, Mississippi appellate courts have clarified that trial judges should ensure that they make a record of the fact that they had advised defendants of their right to testify and inquired whether they intended to do so; but that was only a “strong” suggestion rather than an absolute requirement. Shelton v. State, 445 So. 2d 844, 847 (Miss. 1984); Walker v. State, 823 So. 2d 557, 561-62 (¶7) (Miss. Ct. App. 2002). Thus, when an appellant had been “represented by counsel throughout the proceeding and the record does not reflect any desire by [the] appellant to testify, the failure of the trial court to advise [him] of his right to testify does not constitute reversible error.” Shelton, 445 So. 2d at 847.
¶29. Even so, “the defendant is still allowed an opportunity to prove his counsel somehow denied him the opportunity to testify.” Howard, 171 So. 3d at 573 (¶31). So while a defendant’s silence “should not amount to an absolute waiver of [a defendant’s] claims” that he was denied the right to testify, id. at 570 (¶23), conduct (e.g., silence) can amount to a waiver as long as the waiver was knowing and voluntary. Id. at 572 (¶30). But if a defendant is unaware of his right to testify, he cannot knowingly or voluntarily waive it. Dizon v. State, 749 So. 2d 996, 999 (¶15) (Miss. 1999).
¶30. There are exceptional circumstances when a trial court should obtain an express waiver. One such set of circumstances occurred in Dizon. In that case, there was no Culberson colloquy. Id. at 999 (¶15). After remanding the case for an evidentiary hearing to resolve whether Dizon had been advised of his right to testify and whether he had effectively waived it, id. at 998 (¶10), the Mississippi Supreme Court reversed Dizon’s conviction and remanded for a new trial. Id. at 1001 (¶27). During the evidentiary hearing, Dizon said that his former defense attorney did not advise him of his right to choose to testify, and defense counsel could not definitively say that he had advised Dizon of his rights. Id. at 999-1000 (¶¶16, 18). And because defense counsel’s opening statement put the trial judge on notice that Dizon wanted to testify, the trial court should have expressly advised Dizon of his constitutional right to choose to testify. Id. at 1000 (¶¶22, 25).
¶31. In Spearman, 58 So. 3d 30, 32-33 (¶7) (Miss. Ct. App. 2011), the accused told the trial
¶32. In both Dizon and Spearman, the trial judges should have obtained an express waiver because there was reason to believe that the defendants would choose to testify. In contrast, an express waiver is unnecessary when a trial judge “has no reason to believe that the defendant’s own attorney is frustrating his or her desire to testify . . . .” Howard, 171 So. 3d at 574 (¶37) (quoting United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995)).
¶33. During defense counsel’s opening statement, he said that the jury would hear evidence that Jenkins arrived home from work and found that some of his property had been stolen, so Jenkins was looking for his missing property when he went to Johnson’s apartment. Defense counsel also told the jurors that they would hear evidence that two or three people arrived at Johnson’s apartment separately but nearly simultaneously as Jenkins did. The prosecution objected after defense counsel said that the jury would hear that someone with the nickname “Jay Rock” was armed when he arrived, and he was the person who shot into Johnson’s apartment.
¶34. Outside of the jury’s presence, the prosecution noted that during voir dire defense counsel said he would not call any witnesses. The prosecution then said that none of its
¶35. To summarize, the record does not show that Jenkins ever personally expressed a desire to testify. Instead, defense counsel said that Jenkins may need to testify if cross-examination did not produce evidence consistent with defense counsel’s representations. By extension, Jenkins would not need to testify if defense counsel elicited that evidence, which, for the most part, was in fact adduced during cross-examination.
¶36. It would have certainly been better for the circuit judge to engage in the colloquy contemplated in Culberson. But that colloquy is not an absolute requirement. The question is whether Jenkins was denied the right to testify. “It is extremely common for criminal defendants not to testify, and there are good reasons for this . . . . Yet it is simple enough
¶37. AFFIRMED.
CARLTON, P.J., GREENLEE, TINDELL, McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR. BARNES, C.J., AND McCARTY, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. J. WILSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.