IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-KA-00777-SCT

RICHARD MARK JONES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 11/03/1999

TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER

ROBERT M. RYAN

ANDRE DE GRUY

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: EDWARD J. PETERS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 10/25/2001

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 11/15/2001

EN BANC.

DIAZ, JUSTICE, FOR THE COURT:

¶1. Richard Mark Jones (Jones) was tried and convicted in the Circuit Court of Hinds County, Second

Judicial District, of simple assault on a law enforcement officer and possession of a firearm by a convicted

felon. Subsequently, Jones was sentenced to a term of five years for the assault conviction and a three-year

term for firearm possession to be served in the custody of the Mississippi Department of Corrections

(MDOC), the terms to run consecutively. Jones perfected a timely appeal to this Court and raises a litany

of assignments of error.

FACTS

¶2. On March 16, 1998, Hinds County Sheriff's Deputy Donnie Newman (Newman) stopped at the Pit

Stop Grocery in Raymond, Mississippi, on Highway 18 to fuel his police cruiser. After filling the tank,

Deputy Newman paid for his purchase and spoke briefly with the attendant on duty. Although there is some

conflict over the sequence and particulars of the following events, it is undisputed that Newman heard

someone calling for his attention as he walked back to the patrol car. From the record, it appears that while

sitting in the driver's seat of his 1987 Dodge Ram along with his wife and two sons, Jones twice called out

to the deputy asking him to approach the truck. Deputy Newman walked over to the truck to see what

Jones wanted. Jones has a history of conflict with the Hinds County Sheriff's Department over what he

believes to be its involvement in the death of his oldest son in 1996.
¶3. In a quiet voice, Jones asked, "Why did you kill my son?", referring to the automobile wreck that

claimed his son's life two years earlier. In response, Newman instructed Jones to take his family and leave

the premises. Again, Jones asked about the death of his son. Deputy Newman explained that he was not

even on duty at the time and again instructed Jones to leave. According to Newman, Jones responded by

cursing and calling the deputy a "child killing motherfucker", whereupon Deputy Newman said, "Richard, I

am going to give you one more chance. You need to drive out of here with your family. No use in starting a

scene here." At this point, Jones allegedly stuck his head out of the window and began yelling profanity and

accusing Newman of having a hand in his son's death.

¶4. At this time, Deputy Newman instructed Jones to get out of his truck. When Jones asked why,

Newman responded, "You are under arrest." At which, Jones's wife screamed, "Don't get out. He is going

to kill you." Newman again instructed Jones to step out of the vehicle. When Jones did not, Newman

repeatedly attempted to pull open the driver's side door while instructing Jones to "Get out of the truck."

¶5. According to Deputy Newman, Jones finally threw the door open with all of his strength, knocking the

deputy back three or four feet. Once he regained his composure, Newman claims he was confronted by

Jones standing next to his truck with fists raised yelling, "Let's get it on." As Newman approached, Jones

dropped his fists and said, "Motherfucker, hit me. That's all I want you to do. Just lay a hand on me." A

brief scuffle ensued as Newman wrestled to put handcuffs on Jones. Finally, Deputy Newman was able to

cuff Jones and place him in the back of the patrol car. Newman also claims that Mrs. Jones joined in the

altercation while the deputy was attempting to handcuff her husband.

¶6. The convenience store clerk, Janice Curtis, initially claimed to have only seen the finale of the incident,

the placing of Jones in the patrol car. However, at trial, she claimed to have seen the portion involving the

door as well as the final result.

¶7. Mrs. Jones and Richard Lee Jones, the appellant's son, testified differently. They claimed that Newman

was the party getting upset and that Jones merely asked questions until the deputy tried to place him under

arrest.

¶8. Although he offered inconsistent statements, Newman testified at trial that he had seen the butts of some

guns behind the passenger seat of Jones's truck. Once Jones was safely stowed in the patrol car, Newman

returned to the truck. Mrs. Jones and Richard Lee Jones (and Deputy Newman's statements at the

preliminary hearing) assert that Newman asked whether there were any guns in the vehicle before asking

that the weapons be turned over. After a short bout of verbal fencing with both Mrs. Jones and the eldest

son, Deputy Newman confiscated three weapons (a 12-gauge shotgun, an AR-15 Colt automatic rifle, and

a nine-millimeter Smith & Wesson handgun). He checked to see if the guns were stolen; they were not.

When Newman's lieutenant arrived, the deputy was instructed to give the guns back to Mrs. Jones who

took them home.

¶9. In the end, Jones was tried, convicted, and sentenced to five years for simple assault on a law

enforcement officer for hitting Deputy Newman with the truck door. In addition, he received a three-year

sentence for possession of a firearm by a convicted felon to run consecutively to the simple assault

sentence. From these convictions and sentences, Jones appeals.

DISCUSSION
I. WHETHER THE TRIAL COURT ERRED IN DENYING JONES'S MOTIONS TO

SUPPRESS.

¶10. Jones's first contention is that the trial court erred in denying his two motions to suppress. The first of

the two motions challenged the initial arrest as unlawful and sought to have all evidence obtained thereafter

excluded as "fruit of a poisonous tree." The second motion asserted that the search of Jones's vehicle and

subsequent seizure of evidence (i.e. the guns) was a violation of Jones's constitutional rights. These two

motions will be dealt with separately.

A) The lawfulness of the initial arrest

¶11. The first motion to suppress claimed that the initial arrest was unlawful, and as such, all evidence

collected afterward should be excluded. As evidence of the arrest's unlawfulness, Jones points to the fact

that all misdemeanor charges stemming from the initial arrest were later dismissed by the Justice Court of

Hinds County. The dismissals were not allowed to be entered into evidence at trial, and Jones claims this

also constitutes reversible error.

¶12. Jones cites Pollard v. State, 233 So. 2d 792 (Miss. 1970), as authority for his position that the initial

arrest was unlawful. Pollard was convicted of assault with a deadly weapon stemming from a chase and

shootout with an off-duty police officer. Id. at 793. However, the conviction was later overturned when it

was determined that the officer did not have sufficient probable cause to approach the subject's vehicle

when initiating the arrest. Id. We concluded that any evidence of resisting the unlawful arrest should be

excluded. Id. However, Pollard is not analogous to the present case because in Pollard the officer

initiated the contact and in the case at bar Jones initiated the contact and asked Newman to approach the

truck. More germane to the case at bar is Terry v. State, 252 Miss. 479, 173 So. 2d 889 (1965). In that

case, officers initiated an arrest with no evidence evidence of a crime. "The sheriff had no right to arrest

defendant unless it was evident to him at the time that some breach of the peace was being threatened or a

crime was being committed in his presence." Terry, 173 So. 2d at 891. The threshold question is whether

Newman had probable cause to initiate an arrest. No one from the convenience store asked that Jones be

removed. A determination of when the arrest began controls the outcome on this issue. From the evidence,

it appears as though Deputy Newman tried to initiate an arrest before a crime had been committed by

asking Jones to get out of his vehicle merely because Jones would not leave the convenience store.

¶13. The only acts Jones engaged in before the arrest, according to the record, which could possibly have

warranted an arrest consisted of his profane remarks. There is no evidence in the record that would suggest

that Jones could have initially been arrested for anything other than the verbally accusatory and profane

remarks. The evidence suggests that Newman did not see the guns or inquire about the guns until after

Newman told Jones he was under arrest. This situation forces this Court to consider the type of "profanity"

which would warrant an arrest. Miss. Code Ann. § 97-29-47 (2000) proscribes the use of profanity in a

public place. We have not had an opportunity to interpret the statute; however, the Mississippi Court of

Appeals has recently had an occasion to define what it believes the use of "profanity" sufficient to warrant

an arrest entails.

¶14. In Brendle v. City of Houston, 759 So.2d 1274 (Miss. Ct.App. 2000), Brendle was convicted of

public profanity under Miss. Code. Ann. § 97-29-47 and resisting arrest. The Court of Appeals noted that

it has been over 70 years since this Court has addressed the issue of what constitutes "profanity" and that

we have not had an opportunity to interpret Mississippi's profanity statute. The Court of Appeals relied on
other jurisdictions and the United State Supreme Court opinion of Cohen v. California 403 U.S. 15, 91

S. Ct. 1780, 29 L. Ed. 2d 284 (1971), in overturning Brendle's conviction. The Court of Appeals found

that Brendle did not use fighting words that would incite violence and therefore his subsequent arrest was

not lawful. 759 So.2d at 1284. However, this Court is now reluctant to adopt the reasoning of the Court of

Appeals under these facts, and finds the reasoning in Terry v. State to be dispositive of this issue. Based

upon a careful review of the record, this Court finds that Deputy Newman, did not have sufficient evidence

to believe that a breach of the peace was being threatened or a crime was about to be committed.

Accordingly, all evidence of acts of resisting the unlawful arrest should be excluded.

B) The legality of the search and seizure

¶15. The second motion to suppress deals with the legality of the search and seizure of the weapons in the

truck. The State contends that the search was both incident to an arrest and falls within the "plain view"

exception. However, Jones argues that neither of these warrantless search exceptions apply.

¶16. First, Jones points out that he was handcuffed and safely locked in the backseat of the patrol car when

Deputy Newman seized the weapons. "In the case of a search incident to arrest, the exception to the

warrant requirement is founded upon the reasonable concern that the arrestee might have a weapon on his

person or within reach, and that he may attempt to destroy evidence which is within grasp." Ferrell v.

State, 649 So. 2d 831, 833 (Miss. 1995) (citing Cupp v. Murphy, 412 U.S. 291, 295, 93 S. Ct. 2000,

2003, 36 L.Ed. 2d 900 (1973)). Jones neither posed a danger nor had the ability to destroy evidence.

Therefore, the seizure does not come within the bounds allowable under a search pursuant to an arrest.

¶17. At trial, Newman did testify that he saw the guns while standing next to the vehicle which would allow

their seizure under the plain view exception. United States v. Jimenez, 864 F.2d 686 (10th Cir. 1988).

However, the discrepancies between his description of where the guns were and that of the Jones family are

troublesome, as is the fact that details of Deputy Newman's story changed from the preliminary hearing to

the trial. At first, he described himself asking Richard Lee Jones whether there were guns present in the car,

without ever mentioning having seen them. At trial, he remembers seeing them before he made his arrest. As

we must view the evidence "in the light most consistent with the verdict," it appears as if the warrantless

seizure comes within the plain view exception. Manning v. State, 735 So. 2d 323, 333 (Miss. 1999).

II. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO SEVER

THE COUNTS OF THE INDICTMENT.

¶18. Jones contends that the trial court erred in refusing to sever the counts of the indictment. Jones goes on

to argue that by not severing the counts he was somehow prejudiced, without elaborating on the subject.

Miss. Code Ann. § 99-7-2 (2000) provides in pertinent part:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same

indictment with a separate count for each offense if: (a) the offenses are based on the same act or

transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together

or constituting parts of a common scheme or plan.

(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment,

all such charges may be tried in a single proceeding.

(emphasis added).
¶19. These charges were properly brought as separate counts of a single indictment; there is nothing

requiring them to be severed. Furthermore, severance of counts is within the sound discretion of the trial

judge. Minor v. State, 482 So. 2d 1107, 1109 (Miss. 1986). Vague accusations of unfair prejudice do

not amount to abuse of discretion. Therefore, we find no error.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO TRANSFER THE

MATTER TO THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY.

¶20. Jones argues that his motion to transfer venue should have been granted because his previous mental

troubles were common knowledge in the Second Judicial District. In response to his motion, the trial court

stated,

[C]ertainly if in the voir dire of the jurors it turns out that there are a significant number of jurors that

are familiar with the facts of the case I would sustain your motion. But at this time if we are able to

have enough jurors to try the case without them having knowledge of the charges, then the Court will

try it here. So I would consider your motion after we hear the voir dire of the jurors.

¶21. During voir dire, the concerns were addressed. As such, the trial judge, fully acting within his sound

discretion, determined that a change of venue was unnecessary. Baldwin v. State, 732 So. 2d 236, 241

(Miss. 1999). Jones has done nothing to show that the judge abused his discretion. This assignment of error

is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO SWEAR IN THE JURY

PROPERLY.

¶22. Jones next contends that the trial court failed to properly swear in the jury members, and therefore, the

verdict is null and void. This assignment of error is almost identical to that found in McFarland v. State,

707 So. 2d 166 (Miss. 1997). "[T]he presumption is that the trial judge properly performed his duties . . .."

Bell v. State, 360 So. 2d 1206, 1215 (Miss. 1978). As in McFarland, the verdict and sentencing orders

contained language that the jury had been duly sworn and performed their duties accordingly. In his

argument, Jones has failed to overcome the presumption of propriety. As such, we find this assignment

without merit.

V. WHETHER THE TRIAL COURT ERRED EXCLUDING THE JUSTICE COURT'S

DISMISSAL OF THE INITIAL MISDEMEANOR CHARGES.

¶23. Jones next argues that the trial court erred in excluding evidence that the Justice Court dismissed the

initial misdemeanor charges. Jones asserts that the dismissals were relevant as evidence of the illegality of his

arrest. Since individuals have a right to resist illegal arrest, the dismissal of the initial charges would have

bolstered his theory of the case. Boyd v. State, 406 So. 2d 824 (Miss. 1981). In ruling as it did, the trial

court, Jones contends, denied him the fundamental right to put the issue before the jury. However, as the

State points out, the exclusion of the dismissals did not preclude Jones from developing his theory of illegal

arrest using other evidence. An excerpt from the trial transcript illustrates the point:

Jones: Your Honor, on the first motion, on the admission of the justice court records have you ruled

on that?
Court: Yes, sir. I ruled that the ruling of the Court would be that the motion in limine on the rulings of

the justice court would be sustained. Certainly, you are entitled to develop your proof along the lines

of the factual circumstances surrounding the arrest, but the ruling of the justice court judge would be

precluded.

Jones: I will not be allowed to introduce evidence that the cases were dismissed. Is that the ruling?

Court: Correct. They are not going to be allowed to introduce evidence that he was charged.

Jones: If they introduce evidence that he was charged, would I be allowed to introduce evidence that

these charges were dismissed?

Court: Yes, sir.

¶24. Therefore, Jones could still advance his theory that the initial arrest was illegal through other means.

M.R.E. 103(a) states that "[e]rror may not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected . . ." Since Jones still had the opportunity to present his

defense, he was not deprived of any substantial right. Although we see no reason for the evidence to have

been excluded, Jones failed to show how this ruling affected his right to a fair trial. Therefore, we find this

assignment of error to be without merit.

VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND

THE INDICTMENT.

¶25. The rule concerning indictments is that they cannot be amended to change the nature of the charge,

except by the grand jury. Miller v. State, 740 So. 2d 858, 862 (Miss. 1999) (citing Greenlee v. State,

725 So. 2d 816, 819 (Miss. 1998)). Any amendment not approved by the grand jury must be of form only

and must not affect the substance of the charge pending. Rhymes v. State, 638 So. 2d 1270, 1275 (Miss.

1994). "[A] change in the indictment is permissible if it does not materially alter facts which are the essence

of the offense on the face of the indictment as it originally stood or materially alter a defense to the

indictment as it originally stood so as to prejudice the defendant's case." Id. at 1275 (quoting Shelby v.

State, 246 So. 2d 543, 545 (Miss. 1971)). The amendment in controversy concerned language in Count

1, the assault charge, and occurred after jury selection and opening statements. The timing of the

amendment only is enough to arouse suspicions, but the truly important consideration is whether the

substance of the charge was in any way altered. The original amendment stated, in pertinent part:

. . . did unlawfully and feloniously, purposely or knowingly attempt by physical menace to put Donnie

Newman, a human being, in fear of imminent serious bodily harm, by then and there pushing open a

car door and striking said Donnie Newman with said car door and knocking him backwards . . ..

¶26. The State moved, and the trial court agreed, to delete "by physical menace to put" and replace it with

"to cause bodily injury to." In addition, "in fear of imminent serious bodily harm" was striken. Thus, the

amended indictment read, ". . . did unlawfully and feloniously, purposely and knowingly attempt to cause

bodily injury to Donnie Newman, a human being, by then and there . . .." Jones contends this new language

materially altered the charges he was facing by reducing the elements the State had to prove. Originally, the

indictment required the State to show that Jones (1) acted with purpose or knowledge, (2) used physical

menace, and (3) meant to put Newman in fear (4) of "imminent serious bodily harm." Under the amended

indictment, the State merely had to show that Jones (1) acted with purpose or knowledge and (2) meant to
cause some degree of bodily injury.

¶27. The State contends that the amendment was one merely of form. Jones was originally charged with

simple assault on a police officer, and that was the charge he faced after the amendment. Also, the facts

establishing the charge were the same. In fact, the State argued that "[t]here's been no change in the offense.

There's been no change in when it took place, who the victim is, or who the defendant is." As such, it

believes that the trial court acted properly in allowing the amendment.

¶28. Although Jones failed to lay out exactly how his defense was impaired by the amendment, it is obvious

that the altered indictment differs considerably from the original. True, the charge remained the same, and

the amended indictment complied with the statutory elements. However, a criminal defendant is required

only to illicit a "reasonable doubt" as to any element of an offense in order to disprove the State's case.

Chevalier v. State, 730 So. 2d 1111, 1113-14 (Miss. 1998). In the present situation, the State's

responsibility went from proving an intent to evoke fear of "imminent, serious bodily harm" to proving an

intent to cause "bodily injury." The trial court erred in allowing the State to amend the indictment in the

manner it did.

VII. WHETHER THE TRIAL COURT SHOULD HAVE DECLARED A MISTRIAL FOR

ALLEGED PROSECUTORIAL MISCONDUCT.

¶29. Jones indicates three instances that he claims evidence prosecutorial misconduct, which individually, as

well as cumulatively warrant a new trial. Specifically, Jones asserts that the prosecution interjected improper

evidence concerning other crimes by asking about Jones's previous possession of firearms.

State: Did you ever see your father go in the gun cabinet?

***

State: You clarify me if I am wrong. Are you saying that your father didn't have any kind of guilty

knowledge of being in possession of these guns? Is that what you are telling the jury?

***

State: Have you ever seen your father handle any of those guns?

¶30. He avers that this deprived him of a fair trial. See, e.g., Smith v. State, 656 So. 2d 95 (Miss. 1995);

Usry v. State, 498 So. 2d 373 (Miss. 1980).

¶31. In addition, Jones asserts that the prosecution made a personal attack on defense counsel during

closing arguments, which also calls for a new trial. See Edwards v. State, 737 So. 2d 275, (Miss. 1999).

State: And so when a deputy does what his responsibility is - and it is an awesome responsibility -

when he does take action what does he do? He gets reamed in a court of law by the lawyers

representing the guy who is standing out there doing the screaming and hollering. Is that justice?

¶32. Finally, Jones accuses the prosecution of improperly discussing the fact that Jones was held without

bail prior to the trial, a reversible breach. Kelly v. State, 735 So. 2d 1071 (Miss. Ct. App.1999).

¶33. Trial judges are given wide latitude in determining whether a remark is prejudicial to the defense and
whether a remark may be so prejudicial as to warrant a mistrial. Roundtree v. State, 568 So. 2d 1173,

1177 (Miss. 1990); Gribble v. State, 760 So. 2d 790, 793 (Miss. Ct. App. 2000). In addition, the State

attacks each alleged incident of misconduct as actually being anything but. First, the questions concerning

Jones's prior possession of firearms were dealt with and addressed extensively at trial. In fact, the trial judge

twice sustained Jones's objection as to that line of questioning and required the State to restrict its scope.

As to the allegation of personal attacks against defense counsel, we are concerned with the State's actions.

Although the State purports to have only been trying to discredit the impeachment of Newman, we are

troubled by the method in which it chose to do so. However, attorneys are given considerable room to

maneuver in their closing arguments, and the statement was not so egregious as to warrant declaring a

mistrial. Wilcher v. State, 697 So. 2d 1087, 1110 (Miss. 1997). Finally, the State refutes Jones's

allegation that the issue of no bail was ever presented to the jury and points out that Jones neglected to

indicate where in the trial process the alleged infraction occurred. A review of the record revealed only one

instance in which the denial of bail could be inferred, and it was minor at best:

State: Money from pawning would have come in handy in raising some kind of bond; wouldn't it?

¶34. After reviewing the record, these alleged incidents of prosecutorial misconduct do not appear to rise to

the level that would warrant a mistrial. Furthermore, there is nothing to indicate that the trial judge abused

his discretion in ruling as he did. Therefore, this assignment of error has no merit.

VIII. WHETHER THE TRIAL COURT ERRED IN DENYING JONES'S PEREMPTORY

INSTRUCTIONS AND IN FAILING TO GRANT A DIRECTED VERDICT IN FAVOR

OF JONES.

¶35. Through this assignment of error, Jones is essentially challenging the sufficiency and weight of the

evidence that form the basis for his conviction. When the sufficiency and weight of the evidence are

questioned, the challenge is really being leveled against the accuracy of the jury's verdict. May v. State,

460 So. 2d 778, 780-82 (Miss. 1994). Both the peremptory jury instructions and the motion for directed

verdict are predicated upon the idea that the evidence simply did not justify a finding of guilt beyond a

reasonable doubt. It is a fundamental principle of law that jury verdicts will not be disturbed except under

the most dire of circumstances. Manning v. State, 735 So. 2d 323, 333 (Miss. 1999). Accordingly, in

our review of criminal convictions, we see the evidence in a light most favorable to the prosecution. Id. If

then we decide that no reasonable person could have found the accused guilty beyond a reasonable doubt,

the verdict will be set aside. Id. However, if our review reveals that "reasonable and fair-minded jurors in

the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus

placed beyond our authority to disturb." Id. A review of the record following this high standard does not

reveal a verdict so wanting for evidence as to warrant a reversal. As such, this assignment of error is without

merit.

IX. WHETHER THE TRIAL COURT ERRED IN DENYING JURY INSTRUCTIONS D6 AND D-7.

¶36. Jones appeals the trial court's denial of two of his proposed jury instructions. Specifically, Jones argues

that D-6 and D-7 should have been given as they were the only proposed instructions "which set forth the

defense theory of the case." Instruction D-6 may be properly classified as a lesser-included-offense

instruction, and D-7 sets out the defense of resisting unlawful arrest. Jones asserts that both proposed

instructions are correct statements of law and adequately supported by the evidence; thus, there exists no
justifiable reason for their denial. Therefore, Jones argues that the denial of these two instructions effectively

prevented Jones from presenting his theory of the case to the jury, a reversible error. See Alexander v.

State, 610 So. 2d 320 (Miss. 1993).

¶37. Instruction D-6 sets forth the elements of resisting arrest, which we recognize as a lesser-included

offense of simple assault on a law enforcement officer. Murrell v. State, 655 So. 2d 881, 886 (Miss.

1995); Clayborne v. State, 739 So. 2d 495, 496 (Miss. Ct. App. 1999). D-6 States:

If you believe from the evidence, beyond a reasonable doubt, that Richard Mark Jones did:

1) On or about March 16, 1998, in Hinds County Mississippi;

2) Unlawfully resist by force or violence;

3) His lawful arrest by a law enforcement officer;

Then you may find Richard Mark Jones guilty of resisting arrest. If the prosecution has failed to prove

any one or more of the above elements, beyond a reasonable doubt then you shall find the defendant

not guilty.

¶38. We have long held, that "[o]nly where the evidence could only justify a conviction of the principal

charge should a lesser offense instruction be refuted." (emphasis added). Taylor v. State, 577 So. 2d 381,

383 (1991) (citing Ruffin v. State, 444 So. 2d 839, 840 (Miss. 1984); Fairchild v. State, 459 So. 2d

793, 800 (Miss. 1984); Lee v. State, 469 So. 2d 1225, 1231 (Miss. 1985)). Using even stronger

language, we have previously held that "[a] lesser-included offense instruction must be granted where a

reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable

doubt." Taylor, 577 So. 2d at 383-84 (citing Griffin v. State, 540 So. 2d 17, 21 (Miss. 1989) (quoting

Harbin v. State, 478 So. 2d 796 (Miss. 1985))). Furthermore, "[w]here the defendant requests a lesserincluded offense instruction, one factor to be considered is the disparity in maximum punishments between

the offenses. A great disparity is a factor in favor of giving the lesser included offense instruction." Taylor,

577 So. 2d at 383. In the present case, the disparity is quite great. Simple assault on a law enforcement

officer carries a possible five year sentence (the sentence Jones received), and a resisting arrest conviction is

subject to a maximum of six months. Since there is ample evidence in the record to justify the lesserincluded offense instruction, there was no legal justification for its refusal.

¶39. The argument in support of D-7, the resisting illegal arrest instruction, lacks the same strength and

precedential backing as that aiding D-6. D-7 states:

The Court instructs the jury that a person has a fundamental right to use reasonable force to resist an

unlawful arrest. The Court further instructs the jury that it is unlawful for a law enforcement officer to

arrest a person for a misdemeanor offense not committed in his presence except where a warrant has

issued.

If you should find, that Richard Mark Jones did injure Donnie Newman, but that this was done in

resisting an unlawful arrest and that the force he used was necessary under the circumstances, then

you must find the defendant not guilty.

¶40. In fact, Jones simply states that the instruction was the only one containing the defense's theory of the
case, and as such, denying the instruction hindered the defense's ability to present its case. Although Jones's

argument could have used some elaboration, we have held:

[I]n deciding whether there is sufficient evidence that an issue be submitted to the jury, we must

consider all of the evidence in the light most favorable to the party requesting the instruction . . . That

party must also be given the benefit of all favorable inferences that may reasonably be drawn from the

evidence.

Jackson v. State, 551 So. 2d 132, 146 (Miss. 1989). The granting of instructions should err on the side of

inclusion rather than exclusion. Taylor, 577 So. 2d at 383-84. In fact, proposed instructions should

generally be granted if they are correct statements of law, are supported by the evidence, and are not

repetitious. Id. If the trial judge feels this instruction to fall within these perimeters, it too should be included.

¶41. The State attempts to rebut Jones's argument by urging this Court to rule that this issue has been

waived for failure to object at trial. Contrary to the State's wishes, we decline to do so. There is a long line

of cases which affirm the tenet that denial of instructions need not be objected to in order to preserve the

issue for appeal. Edwards v. State, 737 So.2d 275, 310 (Miss. 1999); Duplantis v. State, 708 So.2d

1327 (Miss.1998); Carmichael v. Agur Realty Co., 574 So.2d 603, 613 (Miss.1990). By submitting an

instruction, one party is essentially declaring its belief that the instruction is a correct statement of law, which

in turn puts the opposing side on notice. As such, we find that the trial court erred in denying the defense's

proposed instructions.

X. WHETHER THE CUMULATIVE EFFECT OF THE ALLEGED ERRORS DENIED

JONES A FAIR TRIAL AND WARRANT REVERSAL.

¶42. Since we have dealt with each issue individually and are reversing on other grounds, we see no reason

to rule upon this issue at this time.

XI. WHETHER THE STATE FAILED TO PROVE THAT JONES'S TWO PRIOR

FELONY OFFENSES AROSE OUT OF SEPARATE INCIDENTS FOR THE PURPOSE

OF HABITUAL OFFENDER STATUS.

¶43. In order for a convicted defendant to be sentenced as a habitual offender, Miss. Code Ann. § 99-19-

81 (2000) requires, in pertinent part, that the person "have been convicted twice previously of any felony or

federal crime upon charges separately brought and arising out of separate incidents at different times . . .."

In the past, we have held that even charges stemming from incidents occurring on the same day at the same

place may count as "separate incidents" depending upon the circumstances. Jackson v. State, 518 So. 2d

1219 (Miss. 1988). The State's brief argument that "because of the very nature of the charges and the

elements of those offenses, they cannot have been in the same incident" is not convincing. Such an argument

is entirely too dismissive of the requirement established by the statute. Since we are reversing on other

grounds, we need not rule directly on this matter.

XII. WHETHER THE TRIAL COURT ERRED IN SETTING JONES'S SENTENCES TO

RUN CONSECUTIVELY.

¶44. Jones contends that the trial court erred in fixing the sentences to run consecutively rather than allowing

them to run concurrent to one another. Jones correctly points out that URCCC 7.07 gives trial judges

discretion in imposition of sentences. Specifically, URCCC 7.07(E) provides
[n]othing contained in the rule shall be construed to prohibit the court from exercising its authority to

suspend either the imposition or execution of any sentence or sentences imposed, nor prohibit the

court from exercising its discretion to impose such sentences to run either concurrently with or

consecutive to each other or to any other sentence or sentences previously imposed upon the

defendant.

¶45. True, there is nothing within the rules or the statutes which required the trial judge to impose

consecutive sentences. However, there is also no indication that in doing so he abused his discretion. This

assignment of error is without merit.

XIII. WHETHER THE TRIAL COURT ERRED IN DENYING JONES PRETRIAL BAIL.

¶46. "Bail is a fundamental, constitutionally protected right." Resolute Ins. Co. v. State, 233 So.2d 788,

789 (Miss.1970). However, the decision on whether to grant bail and in what amount lies within the sound

discretion of the trial judge, and his decision will not be disturbed unless manifestly erroneous. Lee v.

Lawson, 375 So.2d 1019, 1024 (Miss.1979); Wells v. State, 288 So.2d 860 (Miss.1974). While the

denial of bail may have been unnecessary in the present case, "[t]he trial court's denial of bail is not a ground

for reversal of the judgment rendered against the defendant." Benson v. State, 551 So.2d 188, 194-95

(Miss. 1989).

XIV. WHETHER THE JUDGMENT IS SUPPORTED BY THE EVIDENCE.

¶47. Since we are reversing the case on other grounds and have already dealt with this issue under Issue

VII, there is no reason to rule upon this matter now.

CONCLUSION

¶48. We find the trial rife with deficiencies and reverse accordingly. The trial court committed reversible

error in denying Jones's motions to suppress. The amending of the indictment to essentially alter the

elements of the charge also warrants reversal of the conviction and vacating the sentence. Finally, there was

no justifiable basis for refusing Jones's proposed instructions. Therefore, the judgment of the Circuit Court

of Hinds County, Second Judicial District, is reversed, and this case is remanded for a new trial in harmony

with this opinion.

¶49. REVERSED AND REMANDED.

PITTMAN, C.J., AND MILLS, J., CONCUR. McRAE, P.J., CONCURS IN RESULT

ONLY. BANKS, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY

McRAE, P.J. WALLER, J., JOINS IN PART. EASLEY, J., DISSENTS WITH SEPARATE

WRITTEN OPINION JOINED BY SMITH, WALLER AND COBB, JJ.

BANKS, PRESIDING JUSTICE, CONCURRING:

¶50. I agree with the result reached by the plurality. I write separately to note that I would simply overrule

what the State identifies as a contrary "line" of cases supporting the proposition that one must object to the

denial of an instruction in order to preserve error.

¶51. The State cites Ragin v. State, 724 So. 2d 901, 906 (Miss. 1998) and Bell v. State, 725 So.2d
836, 860 (Miss. 1998). Both of these cases noted a "procedural" bar before disposing of these cases on

the merits. There was no procedural bar. Both cases cited Nicholson ex rel. Gollott v. State, 672 So.

2d 744, 752 (Miss. 1996) in support of such a bar. This Court disavowed Gollott in Duplantis v. State,

708 So. 2d 1327, 1339 (Miss. 1998) before Ragin and Bell and thereafter in Edwards v. State, 737

So. 2d 275, 310 (Miss. 1999). No other authority supports a procedural bar. The State's suggestion that

there is a contrary line of cases is then disingenuous. We should say plainly that Gollott and its short list of

progeny are overruled in order to prevent such fallacious arguments.

McRAE, P.J., JOINS THIS OPINION. WALLER, J., JOINS IN PART.

EASLEY, JUSTICE, DISSENTING:

¶52. Donnie Newman was an officer of the law who had been a deputy sheriff for twelve to thirteen years.

Newman was at a convenience store putting gas in his car when Jones called Newman to his car. As a

public servant, Newman went to see if help was needed. Jones had a history of being known as a convicted

felon, an inmate of Whitfield, and as being very confrontational with the police department over the death of

his son. Jones confronted Newman as to why he killed his son? Newman knowing of Jones's past

behavioral problems asked him to leave. Jones then proceeded to call Newman a "child killing mother f--

ker." Newman stated, "Jones, I was not there when your son was killed." Jones then called Newman "a

lying son of a b---h." Newman was worried about his safety as well as the safety of the public at the

convenience store. Again, Newman told Jones to leave or he would have to arrest him.

¶53. Jones protruded his head through the vehicle's window and with his voice cracking and his face turning

red with anger he hollered, "this is a child killing mother f--ker and a lying son of a b---h," to the people in

the parking lot of the convenience store. Newman knew the situation had become hostile, and he could not

just leave. As an officer of the law, Newman had a duty to protect the public and himself. He attempted to

place Jones under arrest since his previous attempts to control the situation by asking him to leave had

failed. Jones left Newman with no other choice. In Newman's attempt to arrest Jones, he was assaulted by

Jones.

¶54. The plurality makes a critical error in stating Newman's arrest was initiated before a crime had been

committed by implying Newman's sole purpose in arresting Jones was merely because he would not leave

the convenience store. On the contrary, Newman was a veteran officer who was faced with an angry

convicted felon yelling threatening obscenities to him and the public after he was told to leave multiple times.

This was obviously a hostile situation where Jones was using fighting words to incite a breach of peace, and

Newman, as any reasonable officer, felt he must control the situation by arresting Jones. Under Miss. Code

Ann. § 97-35-7:

Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a

breach of the peace or which may cause or occasion a breach of peace, fails or refuses to promptly

comply with or obey a request, command, or order of the law enforcement officer, having the

authority to then and there arrest any person for a violation of the law, to:

(a) Move or absent himself and any vehicle or object subject to his control from the immediate vicinity

where the request, command or order is given, or

(i) Act or do or refrain from acting or doing as ordered, requested or commanded by said officer to
avoid any breach of the peace at or near the place of issuance of such order, request or command,

shall be guilty of disorderly conduct....

Furthermore, pursuant to Miss. Code Ann. § 97-29-47:

If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any

public place, in the presence of two or more persons, he shall be on conviction thereof....

¶55. According to the above referenced statute, Newman clearly had authority to arrest Jones for

disorderly conduct or profanity in a public place. Therefore, a crime had been committed before the arrest,

making the arrest lawful.

¶56. The United States Supreme Court has narrowed ordinances dealing with language that is vulgar,

indecent, and arguably profane so that these ordinances cannot punish only spoken words, but the words

must be in the scope of fighting words. See Gooding v. Wilson, 405 U.S. 518, 524, 92 S.Ct. 1103, 31

L.Ed.2d 408 (1972). For words to be considered fighting words the United States Supreme Court has

listed two criteria: (1) Such words must be directed to the person or hearer, and (2) words by their very

utterance are to inflict injury or tend to incite an immediate breach of the peace. Lewis v. City of New

Orleans, 415 U.S. 130, 133, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Cohen v. California, 403 U.S.

15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Jones's actions and language were presented directly to

Officer Newman and the public. It is also clear by the profanity yelled to the public about Newman that

Jones's intent was to incite an immediate breach of peace by his words. The veteran officer, as any other

reasonable officer, felt a breach of peace had resulted by all the circumstances mentioned in the facts.

Newman clearly had the authority to arrest Jones for his disorderly conduct or for public profanity.

Therefore, there was not an unlawful arrest because Jones's crime of disorderly conduct or profanity in a

public place was committed prior to his arrest.

¶57. The plurality does not even mention the crime of disorderly conduct or public profanity that Jones

committed, which is critical error. This is clearly a crime committed by Jones prior to the arrest. These

charges were ultimately dismissed and the charges of assault on a police officer and the carrying of a firearm

by a felon were brought against him. To be legal, the warrantless arrest does not have to have been on the

charge ultimately brought. Goforth v. City of Ridgeland, 603 So.2d 323, 326 (Miss. 1992). Therefore,

even though the crime of disorderly conduct or public profanity was dropped, it was still a valid crime for

an arrest.

¶58. The plurality errs by basing its decision solely on Terry v. State, 252 Miss. 479, 173 So.2d 889

(1965), and comparing its facts to the case sub judice. In Terry, law officers waited on a defendant to drive

by and when he did, he was pulled over and taken out of his car. Id. There was no crime committed or a

warrant for his arrest. Terry states, "a sheriff has no right to arrest a defendant unless it was evident to him a

the time that some breach of the peace was being threatened or a crime was being committed in his

presence." In the case sub judice, it was evident to Deputy Newman that Jones's actions of hanging his

head out of the car window yelling profanity directed at Newman and the public was an attempt to incite a

breach of peace and falling under the fighting doctrine. The facts in Terry are clearly not applicable in the

case sub judice. Therefore, I respectfully dissent and decline to join the plurality's opinion that Newman's

arrest was unlawful.

SMITH, WALLER AND COBB, JJ. JOIN THIS OPINION.