IN THE COURT OF APPEALS 04/08/97

OF THE

STATE OF MISSISSIPPI

NO. 95-KA-00939 COA

CONSOLIDATED WITH

96-KA-00147

JEFFERY MITCHELL A/K/A JEFFREY MARCUS MITCHELL

APPELLANT

 v.

 STATE OF MISSISSIPPI

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

MICHAEL CROSBY

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL: MURDER

TRIAL COURT DISPOSITION: CONVICTION OF MURDER; SENTENCED TO LIFE IN

CUSTODY OF MDOC
CERTIORARI FILED: 7/1/97

MANDATE ISSUED: 10/16/97

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ.

HERRING, J., FOR THE COURT:

Appellant Jeffrey Mitchell was convicted of murder in the Circuit Court of Harrison County on or

about September 1, 1995. He was thereafter sentenced to life imprisonment in the Mississippi

Department of Corrections. Mitchell now appeals the judgment and sentence and assigns the

following errors:

I. THE COURT ERRED IN ALLOWING THE STATE TO PROCEED ON AN

ALTERNATIVE THEORY OF MURDER WHEN THE INDICTMENT SPECIFIED

ANOTHER THROUGH CITING A SPECIFIC CODE SECTION.

II. THE COURT ERRED IN ALLOWING INTO EVIDENCE, THE HEARSAY

DECLARATIONS OF STATE’S WITNESS CHERYL BRIDGES OVER THE

OBJECTION OF THE DEFENDANT.

III. THE COURT ERRED WHEN IT ALLOWED INTO EVIDENCE PROOF OF

OTHER CRIMES.

IV. THE COURT ERRED IN GRANTING THE STATE’S INSTRUCTION AS TO

AIDING AND ABETTING WHEN IT WAS NOT SUPPORTED BY THE EVIDENCE.

V. THE COURT ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY AS

TO THE CORRECT BURDEN OF PROOF.

Finding no error, we affirm.

FACTS

During the early morning hours of February 14, 1993, a shooting involving a .9 millimeter pistol and

automatic weapon, took place at the Flamingo Lounge, a local night club located just north of the

City of Gulfport, Mississippi. The Defendant/Appellant, Jeffrey Mitchell, drove his automobile by and

stopped at or near the nightclub, to check his vehicle for bullet holes, since he testified that he had
heard gunshots as he passed by the Flamingo a few minutes earlier. According to Mitchell, he and the

companions in his vehicle, David Lee and Robert Kennedy, had been drinking, and he was

intoxicated.

As Mitchell got out of his car, a crowd of people gathered around his vehicle. Mitchell attempted to

disperse the crowd by firing his pistol into the ground. When he failed to disperse the crowd, he then

removed an assault rifle from the trunk of his vehicle and began firing in the direction of the Flamingo

Lounge. According to Mitchell, he heard other shots being fired, and he was firing up in the air to

avoid hitting anyone. Meanwhile, the Appellant’s passenger, David Lee, took the other assault

weapon which had been in the trunk of the Mitchell’s vehicle, and also began shooting.

At some point, Mitchell became aware that Larry Dotson, a patron inside the Flamingo, had been

struck with a bullet in the neck and was lying inside the lounge in a pool of blood. At this time,

Mitchell and his two passengers left the scene of the shooting and wound up at Mitchell’s apartment.

According to Robert Kennedy, who testified that he did not participate in firing any weapons,

Mitchell and David Lee washed their hands with alcohol in order to remove remnants of any powder

burns on their hands and made Kennedy wash his hands also. Larry Dotson, the lounge patron, was

pronounced dead when law enforcement officers reached the scene.

Mitchell testified that he had been shooting his weapons either in the ground or up in the air, in order

to avoid hitting anyone. He further stated that he was only trying to scare the crowd of people

converging on him, which, he stated, included some people that had shot him at an earlier time.

Robert Kennedy testified he saw no one shooting other than Mitchell and Lee, and that at one point,

he heard Mitchell say that he must have hit someone because there was a man who had been shot

lying in the doorway.

The jury subsequently found Mitchell guilty of murder.

ANALYSIS

I. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO PROCEED ON

AN ALTERNATIVE THEORY OF MURDER WHEN THE INDICTMENT

SPECIFIED ANOTHER THROUGH CITING A SPECIFIC CODE SECTION?

Mitchell was indicted specifically under section 97-3-19(a) of the Mississippi Code of 1972 as shown

in the indictment. The body of the indictment reads, in pertinent part:

Jeffrey Marcus Mitchell, Donald Ray Lee and Robert Angus Kennedy . . . did wilfully,

feloniously and without the authority of law, kill and murder Larry Dotson, a human

being, with deliberate design to effect the death of Larry Dotson, contrary to the form of

the statute in such cases made and provided, and against the peace and dignity of the State

of Mississippi.

Section 97-3-19 states:
(1)The killing of a human being without the authority of law by any means or in any

manner shall be murder in the following cases:

(a) When done with deliberate design to effect the death of the person killed, or

of any human being;

(b) 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 . . . .

Mitchell claims that since he was indicted specifically under section 97-3-19(1)(a), the State should

have been estopped from convicting him under section 97-3-19(1)(b). In support of this position,

Mitchell cites Article 3, Section 27 of the Mississippi Constitution of 1890 and the case of Quick v.

State, 569 So. 2d 1197 (Miss. 1992). Article 3, Section 27 of the Mississippi Constitution requires

that a person shall not be prosecuted except upon an indictment by a grand jury. A court has no

power or authority to modify or amend the indictment in any material respect. Quick, 569 So. 2d at

1199. See also Van Norman v. State, 365 So. 2d 644 (Miss. 1978) and Kemp v. State, 121 Miss. 580,

83 So. 744 (1920).

In Quick, the defendant was indicted under subsection (b) of the aggravated assault statute, which

requires intentional actions by the accused party in order for that person to be found guilty. However,

Quick was convicted under subsection (a) of the aggravated assault statute, which requires

recklessness "under circumstances manifesting extreme indifference to the value of human life." See

Miss. Code Ann. § 97-3-7(2)(a) and (b) (1972). Our supreme court held that the defendant was

convicted on a "new element which was not contained in the original indictment . . . . Under these

circumstances, we have no alternative but to reverse and remand . . . ." Quick, 569 So. 2d at 1200.

However, as stated in section 99-7-37 of the Mississippi Code of 1972:

[I]n an indictment for homicide it shall not be necessary to set forth the manner in which

or the means by which the death of the deceased was caused, but it shall be sufficient to

charge in an indictment for murder, that the defendant did feloniously, willfully, and of his

malice aforethought, kill and murder the deceased . . . .

Moreover, the Mississippi Supreme Court in Mallett v. State, 606 So. 2d 1092, 1095 (Miss. 1992),

speaking on the issue raised by Mitchell as to how section 97-3-19 should be interpreted, stated:

[T]here is no question that the structure of the statute suggests two different kinds of

murder: deliberate design/premeditated murder and depraved heart murder. The structure

of the statute suggests these are mutually exclusive categories of murder. Experience

belies the point. As a matter of common sense, every murder done with deliberate design

to effect the death of another human being is by definition done in the commission of an

act imminently dangerous to others and evincing a depraved heart, regardless of human

life. Our cases have for all practical purposes coalesced the two so that Section 97-3-19
(1)(b) subsumes (1)(a) . . . .

Mallett, 606 So. 2d at 1095 (emphasis added).

Mitchell’s argument that section 97-3-19 should be dealt with the same way that Quick v. State deals

with the aggravated assault statute was recently rejected by our supreme court in Catchings v. State,

684 So. 2d 591 (Miss. 1996). Citing Mallett v. State, the court specifically held that the Quick

decision in regard to the aggravated assault statute did not apply to murder cases and held, once

again, that subsections (a) and (b) of the murder statute had "coalesced." Catchings, 684 So. 2d at

599.

Therefore, in light of the rule set forth in Catchings v. State, we cannot say that the trial court erred

in allowing the State to proceed under section 97-3-19(1)(b).

II. DID THE TRIAL COURT ERR IN ALLOWING INTO EVIDENCE THE

HEARSAY DECLARATIONS OF STATE’S WITNESS, CHERYL BRIDGES, OVER

THE OBJECTION OF THE DEFENDANT?

During the trial, the State called Cheryl Bridges to testify. The State expected her to testify as an

eyewitness, identifying Mitchell as one of the men who fired upon the Flamingo Lounge. However, at

trial, Bridges refused to testify and said she could not remember implicating Mitchell in the shooting

in a statement to prosecutors on the previous day. After this refusal, the trial court, over defense

objections, allowed the State to present statements to the jury made by Bridges on the previous day,

through the testimony of David Steprow, an investigator for the district attorney’s office, who heard

these statements when they were made. Mitchell claims that the testimony of Steprow should have

been excluded as hearsay.

The State contends that the trial court was correct in allowing the testimony because the statement

was admissible by virtue of Mississippi Rule of Evidence 607 which allows a party to impeach its

own witness. The State argues that this testimony was entered not to prove the truth of the matter

asserted, but rather to impeach the witness, relying on the recent case of Bush v. State, 667 So. 2d

26, 28 (Miss. 1996), a case which has facts similar to the case sub judice. In Bush, our Mississippi

Supreme Court held that a witness’s prior inconsistent statements could be admitted through a police

officer if (1) the witness refused to testify and (2) a proper predicate was laid as to the prior

statement. Specifically, the State must ask the witness "whether or not on a specific date, at a specific

place, and in the presence of a specific person, the witness made a particular statement." Bush, 667

So. 2d at 28 (citations omitted). A reading of the record indicates that a proper predicate was laid.

Thus, the testimony of Cheryl Bridges was properly admitted under Bush.

III. DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE OF OTHER

CRIMES?
During the trial, the State called Robert Kennedy, one of Mitchell’s companions, as a witness. During

the questioning by the prosecutor, the following exchange took place:

By Mr. Simpson:

Q. Describe exactly what happened when you stopped the car.

A. When we pulled up to the club, a lot of people that was standing out around the club

started coming around to his car.

Q. Okay.

A. To purchase drugs and . . . .

At this point, Mitchell objected and moved for a mistrial. The trial court overruled the objection, and

denied the motion for a mistrial, thereby admitting the statement into evidence as a "present sense"

impression pursuant to Mississippi Rule of Evidence 803 (1). The court further ruled, despite

strenuous objections by Mitchell, that the statement of Kennedy concerning the drugs was not overly

prejudicial when applying the balancing test between evidence otherwise admissible but highly

prejudicial, as set out in Mississippi Rule of Evidence 403.

Under our supreme court’s standard of review, the admissibility of evidence rests within the

discretion of the trial court. Peterson v. State, 671 So. 2d 647, 655 (Miss. 1996). Moreover, "the trial

court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and

reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused

occurs." Id. at 656 (citing Parker v. State, 606 So. 2d 1132, 1137-38 (Miss. 1992)); see also M.R.E.

103.

From the record before us, we cannot say that the trial court abused its discretion in allowing the

statement of Kennedy to be considered by the jury. While Mississippi has adopted the general rule

that proof of wrongdoing distinct from the crime alleged in the indictment should not be admitted

into evidence against a defendant,

there are certain well established exceptions to this rule. Where the other crime admitted

into evidence is connected with the one charged in the indictment, and proof of such other

crime sheds light upon the motive of the defendant for the commission of the crime

charged in the indictment, or where the fact of the commission of such other crime forms

a part of the chain of facts so intimately connected that the whole must be heard in order

to interpret its general parts, then evidence of other crimes is admissible.

See Davis v. State, 530 So. 2d 694, 698 (Miss. 1988); see also Townsend v. State, 681 So. 2d 497,

506 (Miss. 1996); and Mackbee v State, 575 So. 2d 16 (Miss. 1990). Moreover, the statement of

Kennedy is admissible pursuant to Mississippi Rule of Evidence 404(b), since it helps to explain why
a crowd of people converged upon the Appellant’s vehicle when he stopped at the Flamingo. As

stated in the official comment to Rule 404(b):

[e]vidence of another crime, for instance, is admissible where the offense in the instant

case and in the past offense are so inter-connected as to be considered part of the same

transaction. Neal v. State, 451 So. 2d 743 (Miss. 1984). (Emphasis added).

IV. DID THE TRIAL COURT ERR IN GRANTING THE STATE’S INSTRUCTION

AS TO AIDING AND ABETTING WHEN IT WAS NOT SUPPORTED BY THE

EVIDENCE?

After testimony had been completed, the trial court granted Instruction 8, which provided:

The court instructs the jury that each person present at the time and consenting to and

encouraging the commission of a crime, and knowingly, willfully and feloniously doing

any act which is an element of the crime or immediately connected with it, or leading to its

commission, is as much a principal as if he had with his own hands committed the whole

offense.

This instruction sets out the familiar legal principle that one who is present when a criminal offense is

committed and who aids, counsels or encourages another in committing the offense is equally as

guilty of the crime as is the principal offender. Swinford v. State, 653 So. 2d 912, 915 (Miss. 1995).

In the present case, Mitchell was admittedly present and involved in the shooting, together with Lee

and Kennedy. Both Mitchell and Lee, and perhaps Kennedy, fired high powered weapons in the

direction of the Flamingo Lounge. According to the testimony, it was never established as to what

kind of bullet killed Dotson, who was found in a pool of blood at the doorway of the lounge.

However, Mitchell was present at the scene and participated in a shootout with his companions that

predictably led to the loss of human life. Thus, Instruction 8 was properly granted for consideration

by the jury.

V. DID THE TRIAL COURT ERR IN FAILING TO PROPERLY INSTRUCT THE

JURY AS TO THE CORRECT BURDEN OF PROOF?

In his final assignment of error, Mitchell claims that the trial court incorrectly instructed the jury on

the burden of proof which the prosecution had to overcome in order for the Mitchell to be found

guilty. Specifically, Mitchell claims that in order for him to be found guilty, the State had to prove his

guilt beyond "all" reasonable doubt and not simply beyond "a" reasonable doubt. Accordingly, the

Mitchell objected to all instructions which placed the burden upon the State to prove his guilt beyond
a reasonable doubt. The trial court overruled the Mitchell’s objection, although the court did grant

Mitchell’s Instruction 4, which stated:

The court instructs the jury that you are bound, in deliberating upon this case, to give the

defendant of any reasonable doubt of the defendant’s guilt that arises out of the evidence

or want of evidence in this case.

(Emphasis added).

The Mississippi Supreme Court has ruled for many years that the State’s burden is to prove the

defendant’s guilt beyond a reasonable doubt. Allman v. State, 571 So. 2d 244, 252 (Miss. 1990);

Russell v. State, 220 So. 2d 334, 338 (Miss. 1969). Mitchell cites no cases which hold that such

holdings are in error. On the other hand, he cites authority, including Hale v. State, 648 So. 2d 531,

536 (Miss. 1994), where the use of the term "all reasonable doubt" in defining the State’s burden of

proof have been ruled to be acceptable language. See Taylor v. State, 682 So. 2d 359, 362 (Miss.

1996), for a recent example, where our Supreme Court has approved the "beyond a reasonable

doubt" standard. See also Williams v. State, 667 So. 2d 15, 24 (Miss. 1996).

Mitchell invites the court to set a new standard and henceforth require the State to prove a

defendant’s guilt "beyond all reasonable doubt." We decline to do so. In the case sub judice, we hold

that the jury was adequately instructed on the State’s burden of proof, especially in light of Mitchell’s

Instruction 4.

THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION

OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE

MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS

APPEAL ARE TAXED TO HARRISON COUNTY.

BRIDGES, C.J., McMILLIN, P.J., COLEMAN, DIAZ, KING, PAYNE, AND SOUTHWICK,

JJ., CONCUR. THOMAS, P.J., NOT PARTICIPATING.