IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00506-COA JEREMIAH ALLEN A/K/A JEREMIAH F. ALLEN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/29/2015 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PHILLIP BROADHEAD ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCED TO FIVE YEARS; AND COUNT II, ARMED ROBBERY, AND SENTENCED TO THIRTY-FIVE YEARS, W I TH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: REVERSED AND REMANDED: 11/08/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. Jerem iah A l l e n , 1 a n e mp l o y e e at W endy ’s in Richland, M ississippi, conf essed to

1 P h illip W

. B ro ad h ead , clin ical p ro f e s so r an d d irecto r o f th e U n iv ersity o f M ississip p i S ch o o l o f L aw C rim in al A p p e a ls C lin ic, w as ap p o in ted as A lle n ’ s ap p ellate co u n sel. T h ird -y ear l aw stu d en ts S ean S

. B o ers an d J illian E

. C h an ce w ere ap p o in ted ashelping his brother rob the restaurant. The Rankin Count y C i rcuit Court rejected Allen’s

claim s that his conf

ession was involuntary b ecause it was e licited by prom ises f r om law enf orcem ent. W hile we f

ind that t he conf

ession was p roperly adm itted, the trial c ourt did err in deny ing Allen the opportunity t o present evidence to t he jury attacking the conf ession’s truthf ulness. This error denied Allen a f air trial, and so we reverse h is co n v i c t i ons and

rem and the case f

or a n ew trial. W e address Allen’s rem aini n g contentions b ecause they

concern the suf

f iciency of the e vidence or are “likely to arise once again o n rem and.” Newell
v. State , 175 So. 3d 1260, 1268 (¶5) (Miss. 2015) (citations om itted). 2
DISCUSSION
1. Adm issibility of Confession ¶2. Allen u nsuccessf

ully m oved at trial to suppress h is conf ession based on his c laim that it was e licited through prom ises of leniency f rom t he i nterviewin g p o l i c e of f icers. Allen initially becam e a suspect af

ter s u rveillance video showed him talking on a cell phone and

m oving around near a door that had been lef t unlocked, t hrough which the robber entered the

restaurant af

ter it closed. Allen actually m ade several statem ents on two separate day s

sp ecial co u n sel p u rsu an t to M ississip p i C o d e A n n o tated sectio n 7 3 -3 -2 0 7 (R ev . 2 0 1 2 ) an d assisted in th e p rep a ratio n o f A llen ’s b rief s o n ap p eal u n d er P ro f esso r B ro ad h ead ’s su p erv i sio n .

2 We d iscu ss t h e s u f

f i cien cy o f th e ev id en ce b ecau se, i f th e ev id en ce h ad b een in su f f icien t, it w o u ld r eq u ire th e ren d erin g o f an acq u ittal rath er t h an a retrial. A s th e su p rem e co u rt r eq u ired i n N ew ell , w e w ill ad d r ess t h e rem ain in g issu e s b e cau se w e f i n d th em lik ely to arise ag ain o n r em an d

. B u t to th e ex ten t th at o u r an aly sis d ep e n d s o n th e f acts in th e reco rd b ef

o re u s, o u r d ecisio n sh o u ld n o t b e read as p reclu d in g a d if f eren t resu lt o n rem an d if ad d itio n al o r

d if f eren t f acts are p resen t ed

.

2separated by about a w eek, and som e of the statem ents concerned another robbery in another

county

. The f

irst day , Allen was without the benef it of counsel, but he m ade a second and
f inal s tatem ent in the p resence of his def ense attorney , S arah G r egory , who u ltim ately did not represent him

at trial. ¶3. “Th e g e n e r a l r u l e i s that f or a conf e s sion t o be adm issible i t m u st have been given voluntarily , and not as the result of any prom ises, threats[ ,] or other inducem ents.” Giles v. State , 1 87 So. 3d 116, 125 ( ¶31) (Miss. 2016) (citation o m itted). “A conf e ssion is v oluntary when, taking into c onsideration the totality of the c ircum stances, the statem ent is the product of the a c cused’s f

ree and rational choice.” W ilson v. Sta t e , 936 So. 2d 357, 361-62 (¶8) (Miss. 2006). “The burden lies w ith the State to p rove that a conf ession is voluntary .” Scott

v. State , 8 So. 3d 8 55, 8 61 (¶24) (Miss. 2008)

. “[ T]he burden is m et by the testim ony of an of f icer, o r other person having k nowledge o f the f

acts, t hat the conf

ession was voluntarily

m ade without any threats, coercion, or of f e r o f reward. This m akes o ut a prim a f acie case f or the State on the question of voluntariness.” Id. (citation and quotation m arks om itted).
In order to adm it the statem ent af ter hearing all the evidence, the trial judge m ust f ind bey ond a reasonable doubt that it was given voluntarily

. Id. at (¶23). ¶4. Each of t he three of f icers involved in questioning Allen testif ied unequivocally that

no one ever prom ised him leniency or otherwise led him t o believe he would receive it if he conf essed. According t o the of f icers, A llen h ad attem

pted to elicit a prom i se of leniency by writing out a conf

ession but ref

using to sign it unless he was g iven a deal. Allen’s of f er was

3ref

used, and som e t im e later, a f ter retaining counsel, h e gave another statem e nt and signed it, all without ever receiving any prom i ses. ¶5. Conversely , Allen t estif ied that two of the of

f icers had at several p oints of f ered him

a l ower bond and a reduction in his charges f r om arm ed robbery t o conspiracy in exchange
f or his statem ent. In support o f his claim s , Allen p oints t o the f act t hat af

ter his f inal conf ession, the m

unicipal court lowered h is bond and apparen t l y 3 reduced h is c harges to conspiracy

. Also, Gregory testif ied that she believed o ne of the of f icers h ad o f

f ered to reduce the charges in exchange f or Allen’s statem ent. Based on this ev i d e n c e , Allen contends on appeal that the trial court’s decision to adm i t the statem ent was against the overwhelm ing weight of

the evidence. ¶6. “The circ u i t c o u r t s its as a f act f inder when determ ining [ the] voluntariness of a conf ession, and its determ i nation will not be reversed unless m anif estly wrong.” Horne v. State , 825 So. 2d 627, 6 39 (¶44) (Miss. 2002). This C ourt can r everse a trial court’s denial of a m otion to suppress “only when an incorrect legal standard was applied, m anif est error

was com m itted, o r the decision is contrary to the overwhelm ing w eight of the evidence.”
W illiams v. State , 115 So. 3d 774, 778 (¶11) ( Miss. 2013) (quoting M artin v. State , 871 So. 2d 693, 701 (¶30) (Miss. 2004)). M ost im portantly , “ t he resolution of conf l icting testim ony

3 A n ab stract f

ro m th e m

u n icip al c o u r

t in d icated t h a t A l l e n h ad b e en ch arg ed w ith arm ed ro b b e ry , b u t testim o n y at trial w as th at h is ch a rg es w ere r ed u ced b y th at co u rt. A n o te o n a m ittim

u s ex ecu ted b y t h e m

u n icip al co u r t a l so stated t h at A llen ’s ch a r g es w o u ld b e red u ced

. 4regarding vol u n t a r i ness is a question of f act to be resolved by the trial judge at the suppression hearing.” Chase v
. State , 645 So. 2d 829, 841 (Miss. 1994) (citation om itted). ¶7. W e reiterat e t h a t t h e o f f icers testif

ied that no prom ises were m a de to any one. In
response to Allen’s claim s , t he of f icers adm itt e d they d id not know why his c harges were noted t o b e r e d u c e d on the m ittim us. And they conceded t hey would h ave expected t o be consulted as to t he c harges to be brought. But t he prosecutors a n d t h e g r and j ury had the authority to m ake the charging decision, not the police. T here w as also testim o ny that it was routine in the jurisdiction t o reduce bond when an accused waived his right to a prelim inary hearing, which Allen did. ¶8. In addition t o the o f f icers’ testim ony , the r e w a s o t h e r e v i d e n c e r e f uting Allen’s

c l a i m s. H is second w ritten statem ent, which he signed, r ecites that it was given “ w i t h o u t
prom ises of any k i nd.” Allen likewise executed a written Miranda waiver im m ediately prior

to giving that statem ent; it too recited that no prom ises had b e e n made. The w aiver was signed b y Allen’s a ttorney , Gregory , as a witness. And Gregory adm itted she h ad represented Allen a nd was acting as his attorney at the tim e, his decision to speak with law enf orcem ent the second tim e was m ade a f ter consulting with her, and she w a s present d uring the interview. 4 Presum ably , Gregory knew that p r o s e c u tors, not police of f icers, have the

4 E v en if w e d id n o t af

f irm th e trial co u rt’s f

in d in g th at th ere w as n o o f f er, th e f act th at A l len w as rep resen ted an d h ad co u n s el p resen t w o u ld s u rely b e r elev an t in d ecid in g , in th e to tality o f th e circu m stan ces, w h e th er th e seco n d co n f essio n w as v o lu n tary n o tw ith stan d in g an o f

f er o f rew ard

. T h e f

act th at a p ro m ise m ay h av e b een m ad e d o es n o t n ecessarily req u ire su p p ressio n ; “[ t] h e test

. . . is w h eth er th e in d u c e me n t i s o f a n atu re 5authority

to reduce charges against a def endant. ¶9. At one p oint in her t estim o n y , Gregory conceded that “there was no specif ic prom ise” but s im ply an “understanding [ of som e benef it] any t i me I l e t m y client speak to law enf orcem ent.” L ater, she d id seem to suggest there was a m ore specif ic prom ise f

rom one of the of f icers, but she c ould not r em em ber when it was m a d e or who had m ade it. Gregory also could not exclude the p oss i b i l i t y t h at her understanding of a prom ise m a y have com e f rom Allen him s elf

. ¶10. Keeping in m ind our def e rential standard of review, we c a n n o t s a y t h at the trial
court’s resolution of the conf licting testim ony here w as against the overwhelm ing weight of the evidence.
2. Lim itation of Defense ¶11. W h ile we f

ind no error in the decision to adm it Allen’s conf ession into evidence, the trial judge also f

ound that Allen’s c ontentions regarding the surrounding circum stances were irrelevant and preclude d A l l e n fr o m p r e s e n t i ng evidence attacking the conf essions to the jury

. ¶12. During the p rosecution’s c a s e - i n - c h i e f , A l len a t tem

p ted to set up this def

ense by asking one of

the interviewing of

f icers, Detective Lee Drake, about what Gregory , Allen’s
f orm er def ense attorney , had t estif

ied at the suppression hearing. The trial judge opined that he did not believe the question called f or h earsay , b ut he s ustained an o b j e c t i o n that the

calcu l ated u n d er th e circu m stan c es to in d u c e a co n f e s sio n irresp ectiv e o f i ts tru th o r f alsity .” T a ylo r v. S ta te , 7 8 9 S o . 2 d 7 8 7 , 7 9 5 (¶3 4 ) (M i ss. 2 0 0 1 ). 6question of whether leniency had b een of f ered was irrelevant, rem arking t hat it was “a m atter f or the court” and “not r elevant to whether or not [ Allen] com mi t ted this crim e.” Af ter hearing m ore a rgum ents, the judge reiterated: “It all goes to the issue of his expectation of leniency , and that’s not relevant as to his guilt or innocence.” Allen’s attorney nonetheless proceeded to ask Detective Drake w h e t her there had b een any of f ers of leniency , which Drake denied, and t hen the a ttorn e y a s k ed about how they would go a bout deciding what charges to bring against a suspect. But when Allen attem pted t o q uestion Drake about the apparent reduction in Allen’s charges af ter his conf

ession, the prosecution objected, and the objection was sustained. This exchange f ollowed:
THE COURT: [ A]ll of that is n ot r elevant. And even if it were relevant, I do believe it would probably be conf using to the jury , because t he i ssue is whether or not the State can prove, according t o their burden o f p roof , the def endant is guilty of c onspiracy to com m it arm ed robbery [ or] arm ed robbery

. Those were the indictm ent c h arges handed down by the grand jury , and what happened below is not relevant. And to allow y ou t o get into t hat would be c onf using to the jury , so that will not be allowed. [ DEFENSE ATTORNEY]: All right. Just to clarif y , because I don’t want to get m y self in t rou b l e w ith the Court. Obviously , y ou’re r uling this is inadm issible. Are y ou rulin g I can’t ask him i f the charge was – if his bond was dropped down and the charge was changed? Can I ask him that? The judge then a sked t he prosecutor f or a response, and the p rosecutor suggested that there

m ight be a question about w hether Detective Drake had p ersonal knowledge about what charges were brought against A llen. The judge then asked the prosecutor whether that was

an objection, and t he prosecutor responded that he “thought s o.” The judge ruled t hat it was “[ s]ustained as to relevancy , it’s the sam e issue.”
7¶13. Thus, it is apparent that t he trial c ourt did not sim p ly rule on objections to individual questions or answers on the cross-exam ination o f D e t e ctive Drake; it m ade a sweeping
f inding of irre l e v a n c e t h a t precluded Allen f rom presenting to the j ury his version of the

c i rcum stances of his conf e ssion. This was contrary to well-settled Mississippi law, which
our suprem e court has articulated as f ollows: The adm issibility of a conf e ssion is f o r the determ ination of a trial judge. The adm issibility of the conf

ession, h owever, is to be distinguished f rom t he issue of i ts credibility and its weight. The distinction has be e n e n u n c iated by this Court. In McNeal v
. State , 405 S o. 2d 90 ( Miss. 1981), t his Court stated t hat “the com petency of a c o n f

e ssion as evidence is f

or the court to d ecide as a m atter of law, while the weight and credibility of a conf e ssion is f

or the jury to decide along with other testim o ny a n d phy sical evidence.”
Once a conf

ession is adm itted into evidence, a def endant is entitled to subm it evi d ence and have the jury pass upon the f actual issues of its t ruth and voluntariness and upon its weight and c redibility

. T he def e ndant m ay of

f er proof to show that the conf essi o n is untrue and explain why h e m a de the untrue statem e nt. Once t his r ebuttal or i m

p e achm ent testim ony is of f ered, then the jur y m ay con c l u d e t h a t the conf

ession, though f

ound by the court to be voluntary , is untrue and not entitled to any weight. Conf essions are not conclusive and m ay be weighed as to their c redibility under the circum stances b y the jury

. This is a m atter f or the jury

and not the court.
W ilson v. State , 451 S o. 2d 724, 726 (Miss. 1984) ( citations om itted); s e e a l s o Harden v. S t ate, 59 So. 3d 594, 609 (¶40) (Miss. 2011); Scott v. State , 878 So. 2d 933, 968-69 (¶96 ) (Miss. 2 004) (overruled o n other grounds by Lynch v. State , 951 S o. 2d 549, 557 (¶24) (Miss. 2007)). ¶14. Ref

using to allow the def

endant t o attack the t ruthf ulness of h is c onf

ession is error of

8a constitutional dim ension that denies a def endant f undam ental constitutional rights, but it can still be subject to a harm less error analy sis. Crane v. Kentucky , 476 U.S. 683, 687-91 (1986); Rhone v. S

tate , 2 5 4 So. 2d 750, 754 (Miss. 1971) ; A nderson v. State , 241 So. 2d 677, 678 (Miss. 1970). ¶15. But we cannot f

ind t he error here to be harm less, as Allen’s conf essions were critical

to the prosecution. And although Allen was not perm itted to present his side of the story , the
State was a llowed to b olster t he c onf essions by m aking i ts case f or their reliability to the jury

. The other evidence of Allen’s guilt consisted alm ost entirely o f the account of his brother’s girlf riend, who was the getaway driver. S he had turned State’s witness in e x change f or leniency , and she adm itted that she had no com m unication with Allen directly and that her understanding of his role in the r obbery cam e f rom his b rother. The testim ony of coconspirators is to b e regarded “with great caution and suspicion.” W illiams v. State , 32 So. 3d 486, 490 (¶12) (Miss. 2010). Underscoring the point , the prosecutor even s tated in his rebuttal closing argum ent that the jury could “throw o ut” the g irlf riend’s testim ony because of the strength of

Allen’s conf

essions. ¶16. Considering the prosecution’s dependence o n t h e c o n fe s s i o n s , w e c a

n n o t fi n d t h e error here to be harm less, and so we reverse Allen’s convictions and rem and f o r a new trial. 3. Sufficiency of the Evidence ¶17. W e next consider Allen’s challenge to t he suf f iciency o f the evidence supporting his convictions. In evaluating the suf f iciency of the evidence, we m ust decide whether it allows

9a jury to f

ind “bey ond a r easonable doubt that [ the] accused com m itted the a ct charged, and that h e d id so u nder such circum stances that every elem ent of the o f f ense e x isted; and where the evidence f

ails to m eet this test it is insuf f i cient to support a conviction.” Bush v. State , 895 So. 2d 836, 843 ( ¶16) (Miss. 2005). “[ T]he relevant question is w hether, a f t er viewing th e e v i d e n c e i n the light m ost f avorable to t he prosecution, any r ational trier of f act could have f ound the essential elem en t s o f t h e c rim e bey ond a reasonable doubt.” Id. (quoting Jackson v. Virginia , 443 U.S. 307, 315 (1979)). ¶18. A l l e n c o n t e n d s t h a t a r me d r o b b e r y w a s n ot proven, because there was onl y “inconclusive” proof a gun was used. But he seem s to m isunderstand the elem ents of arm ed robbery . The use of

an actual gun is not required, only an overt act of the perpetrators that would cause a reasonable person to believe a deadly weapon is present. “[ A] victim is not required to have def

inite k nowledge o f a deadly weapon.” Dambrell v. State , 903 So. 2d 681,
683 (¶6) ( Miss

. 2 0 0 5 )

. Moreover, the m a n ager of t he store testif ied without equivocation that she was robbed at gunpoint, the surveillance video a p p e a r s t o show the robber arm ed with a handgun, and the getaway driver adm itted she saw Allen’s brother with a gun when he cam e out of the store. Allen does not say what would a m ount to “conclusive” proof , but this was m ore than suf

f icient under our relevant standard of review. ¶19. Allen next argues that he could not b e f ound g uilty of c onspiracy t o c om m it arm ed robbery because, although he adm itted to an ag r eem ent to com m it robbery , he adam antly denied that there was ever an agreem ent t o com m it an armed robbery

. He points out that the

1 0only other m em ber of the conspiracy whose account was presented corroborated Allen’s claim (m a de in the conf

essions) that his brother did not own the gun a nd h ad borrowed it f or the robbery

. ¶20. The State was r equired to produce evidence f rom which a r easonable juror could f ind bey ond a reasonable doubt that Allen a greed with one or m ore persons to com m it an arm ed robbery

. See Miss. Code Ann. § 97-1-1(1) (Rev. 2014). “The agreem ent n eed n ot b e f orm al

or e xpress, but m ay be inf

erred f rom the circum s tances, particularly by declarations, acts, and conduct o f the alleged conspirators

. ” T a y l o r v. State , 62 S o. 3d 962, 965-66 (¶13) (Miss. 2011). And conspiracy m ay be proved entirely by circum s tantial evidence. D avis v. State , 485 So. 2d 1055, 1058 (Miss. 1986). ¶21. “In a crim i nal prosecution, the jury m ay accept the testim o ny of s om e w itnesses and reject that of o thers, and m ay a ccept in part a n d reject in part the testim ony of any witnesses,

or m ay b elieve part of the evidence on behalf of the [ S]tate and part of that f or the accused, and the credibility o f s uch witnesses is not f or the reviewing court, but o n l y f or the jury .” Groseclose v. State , 440 So. 2d 297, 300-01 (Miss. 1983) (citations om i t t e d )

. H e r e , a reasonable juror could a ccept A llen’s conf e ssion that he conspired with h is brother to rob the restaurant, but still reject his c laim that no gun was contem

p lated as a self

-serving attem

pt
to m inim ize his culpability

. The jury could go on to inf er t hat an arm ed robbery was agreed

as Allen’s brother did, in f act, bring a gun i nto the r estaurant and use it in the r obbery

. W e f ind suf f i cient evidence to support a conviction f or conspiracy

to com m it arm ed robbery

.

1 14. Lesser-Included-Offense Instruction

¶22. Finally , we address Allen’s contention that the trial court erred in ref using a lesserincluded-of

f ense instruction on sim

ple robbery

. “ A def

endant is entitled to jury instructions on his theory

of the case whenever there is evidence that would support a jury ' s f i nding on that theory [ , but] a t rial court m ay ref u se a jury i nstruction when it i s an incorrect statem ent of law, f airly covered in other instructions, or h as no f oundation in t he evidence.” Thomas

v. State , 48 So. 3d 460, 469 ( ¶23) (Miss. 2 010) ( c i tations om itted). “To be entitled t o a lesser-included-of

f ense instruction

. . . the def endant mu s t p o int to evidence in the record
f rom which a jury reasonably could f ind the def

endant not guilty o f the c rim e with which the def endant is charged and a t t he sam e tim e f i nd the def

en d a n t g u i l t y o f the l esser of f ense.” Id . at 472 (¶29) (citations om itted). ¶23. Allen presents two argum ents here. His f irst tracks h is contentions o n the suf f iciency of the e vidence, and is patently without m erit – A llen c ontends t here was no showing that his brother was arm ed during the robbery

. Having r eviewed the surveillance v ideo of the robbery and the testim o ny of the w itnesses, we agree with the trial court t hat n o r easonable juror could f

ind that a gun was not used in the robbery

. ¶24. Al l e n ’ s r eal goal in of f ering the instruction seem s to h ave been hope that the jury would b elieve his cla i ms t h a t t h e robbery was not p lanned to be an arm ed one. It is the general rule t h a t a n accom plice “ need not n ecessarily have intended t he particular crim e

com m itted by t he principal” but “is liable f or a ny crim inal act which in the o rdinary course

1 2of things was t h e n a t u r a l or probable consequence” o f the intended of f ense. 22 C.J.S. Criminal Law § 179 (2016). “The f act that the c rim e is not com m itted in the particular way designated b y the procurer o r conspirator does not prevent him

. . . f rom being liable as an
accessory bef

ore t he f act.” Id. Mississippi f

ollows that rule. O ur s uprem e court has recently reiterated: “If two o r m ore persons enter i nto a com b ination or conf

ederation t o accom

plish

som e unlawf

ul object, a ny act d one by any of the p articipants i n p u r s u ance of the original plan a nd with ref

erence to the c om m on object i s, i n c ontem plation of law, the a ct of all.” Roby v. State , 183 So. 3d 857, 875 (¶71) ( Miss. 2016) (quoting Shedd v. State , 228 M iss. 381, 386, 87 So. 2d 898, 899 (1956)). ¶25. Allen p oints to W

e lch v. State , 5 66 So. 2d 680, 684 (Miss. 1990), w here the d ef endant

was an a ccessory to a k idnapping that ended in the killing of the victim by an acco mp l i c e. The Mississippi Suprem e Court h e l d t h at a jury should have been instructed on a lesserincluded of

f ense of m anslaughter. It did state that the accessory “ def e n dant m ust possess the

m ens r ea f

or the com m ission o f the crim e.” Id. B ut, just as the suprem e court recently held
in Roby , this was not just any m ens rea, but the s pecif ic i ntent required to com m it m urder

– deliberate design t o ef

f e ct death. Roby , 183 So. 3d at 874 (¶70). Even assum ing this holding

can b e generalized to apply out s i d e t he hom i cide context, the s pecif i c-intent elem ent in

arm ed r obbery is t he sam e as in sim ple robbery – to perm anently d eprive t he victim of her
p r o p e r ty

. See W

illiams v. State , 590 So. 2d 1 374, 1379-81 (Miss. 1991). Arm ed ro b b e r y requires no specif

ic intent not present in sim ple robbery

.

1 3¶26. In f

act, the Mississippi Suprem e Court has addressed the robbery /arm ed robbery

issue bef ore, and i t h e l d that t he def endant “was crim i nally r esponsible [ f or arm ed robbery ] whether h e had specif

i c advance knowledge of [ his a ccom plice’s] possession and intended

use of the weapon or not.” Eakens v
. State , 289 So. 2d 687, 688 (Miss

. 1974). This is because, as we said, accessories are guilty “ of a ny crim e com m itted by any [ other accessory ] in the execution of the com m on p u r p o s e , as o ne of its natural and probable consequences,

even t hough none of the parties intended a t the outset to d o the particular thing constituting the crim e.” Id. (citations om itted). ¶27. W e f

ind no error in the ref

usal of the lesser-included-of

f ense instruction. ¶28. T H E JUDGM E N T O F T H E R A N K I N C O U N T Y C I R C U I T C O U R T I S REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. A L L COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY. LEE, C.J., IRVING AND G R I F F IS, P.JJ., BARNES, I SHEE, CARLTON, W I LSON AND G R E E N L E E , JJ., CONCUR. J AMES, J., CONCURS IN P A R T WITHOUT SEPARATE WRITTEN OPINION.

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