                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-KA-00039-SCT

ANDRE J. JONES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        11/10/2008
TRIAL JUDGE:                             HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:               JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 LESLIE S. LEE
                                         MICHAEL DUANE MITCHELL
                                         BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LISA LYNN BLOUNT
DISTRICT ATTORNEY:                       ANTHONY J. BUCKLEY
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 05/13/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE CARLSON, P.J., DICKINSON AND PIERCE, JJ.

      PIERCE, JUSTICE, FOR THE COURT:

¶1.   This appeal proceeds from the Circuit Court of Jones County, Mississippi, where a

jury convicted Andre J. Jones of the July 17, 2007, murder of Eric Rogers. Circuit Judge

Billy Joe Landrum sentenced Jones to life in the custody of the Mississippi Department of

Corrections. After denial of post-trial motions, Jones appealed, raising the following two
issues: whether the Weathersby 1 rule applies, and whether there is sufficient evidence to

support the verdict. After review, this Court affirms the ruling of the trial court.

                                 STATEMENT OF THE FACT

¶2.      On July 17, 2007, Eric Rogers was killed by a stab wound to the right side of his neck.

Testimony as to the events that led up to the death of Rogers is conflicting.

         Testimony of Andre Jones

¶3.      The defendant, Andre Jones (“Andre”) testified that on the morning of July 17, 2007,

Vernon Barnes (“Vernon”), Eric Rogers (“Eric”), Brandon Jones (“Brandon”), Chris Jones

(“Chris”), and Cadaro Gavin (“Cadaro”) came by his home. Andre asked Vernon for a ride

and got in the car. Andre admits that he and Eric, who also was sitting in the front seat of

the car, started arguing. After reaching their destination, Andre parted company with the

others sometime after 10:00 a.m. Andre later rejoined the group around 7:30 that evening.

After driving around and visiting a store, the group ended up back at Vernon’s and Eric’s

house.

¶4.      After arriving at the house, Andre stood next to the carport, drinking a beer. He was

approached by Eric, who said that he did not appreciate how Andre had been talking to him.

Eric then swung and knocked Andre to the ground. As Andre was lying on the ground, Eric

got on top of him and hit Andre’s head against the ground. Andre did not know where Eric

went when Eric got off of him.



         1
             Weathersby v. State, 147 So. 481, 482 (Miss. 1933).

                                                2
¶5.    When Andre first got up from the ground, he thought his head was bleeding. Andre

went to the porch and asked Vernon to let him in the house so that he could check on his

head. Vernon declined. Then, as Andre was standing on the porch, Eric snatched the door

open, holding the knife in his hand. Once Andre realized that Eric had a knife, they began

“tussling.”

¶6.    Andre explained that he did not run away because he had feared that Eric “was so

close up on” him when he opened the door, that Andre would not be able to get away. He

instead grabbed Eric, and they began to wrestle inside the house. They both fell to the floor.

Eric did not get up after the fall, but Andre jumped up and grabbed the knife. Vernon then

came to the door and, after seeing what had happened, told Cadaro to go get his gun out of

the trunk. Andre walked outside, past Vernon, then down the street.

¶7.    Andre testified at trial that no one was close enough to him to see what had happened.

He stated that Vernon was standing near the carport, Cadaro was standing over by the car,

and his two nephews were standing out in the yard. Andre also testified that after he left the

house and walked down the street, he saw some people with whom he wanted to catch a ride,

so he threw down the knife. Andre testified that he never went to the kitchen to get the knife

and that he never had possession of the knife until the fight was over.

       Testimony of Vernon Barnes

¶8.    Vernon testified that Andre called him on the morning of July 17 and asked him to

come by his house to pick him up. After Vernon picked up Andre, Eric got in the front seat.

Andre then told Eric to get in the back seat, which he did. As Eric was getting in the back

                                              3
seat, he stuck out his hand at Andre and told Andre that he respected him and that he was

going to go ahead and get in the back. They stopped at a store on the way home. While at

the store, Vernon stated that there was a lot of “ragging going on” between Andre and Eric.

Eric did not respond to Andre’s taunts.

¶9.    When they got to Vernon and Eric’s house, sometime after 7:30 p.m., Andre was still

“ragging on” Eric. Eric walked to the road to try to get away from everybody, but Andre

followed him and continued to rag on him. Andre then punched Eric, who punched Andre

back, knocking Andre to the ground. While Andre was on the ground, Eric grabbed him and

told him to leave him alone. Eric then got up and went inside the house.

¶10.   The electrical power at the house was out, and Vernon claimed nothing could be seen

inside the house. Vernon had left the window open so that Eric would be able to get in and

out of the house if no one else was home. However, Vernon later admitted that there was

some light coming in the house from a streetlight. Eric entered the house through the

unlocked front door, locked it behind him, but then later unlocked it. Andre and Vernon then

entered the house. In the dark house, Eric kept asking Andre to leave him alone, while Andre

was walking around holding his head. Then Andre walked past Vernon to go to the kitchen.

Vernon saw Andre punching Eric when Andre came back from the kitchen, however, Vernon

testified that it was dark in the house and he did not actually see Andre stab Eric. When

Eric’s body hit the floor, Vernon and Andre ran from the house and Vernon called 911.

Vernon did not know where Andre went after they fled the inside of the house.




                                             4
¶11.   On cross-examination, Vernon testified that Andre had entered the house through the

front door and that all of the men, who were several feet behind Andre, had entered the house

after him. He also testified that Andre had licked the blood off of the knife as he came

outside. Vernon said that there had been enough light from the street light to see faces and

to get around the house.

       Testimony of Chris Jones

¶12.   Chris testified that, after Vernon picked up Andre, Andre told Eric to let him sit up

front so that he could be ready to get out. Eric then got in the back. Chris also testified that

Eric told Andre that he “ain’t going to need to fight” him. He also remembered Eric trying

to shake Andre’s hand, but Andre refused to shake it. Chris stated that the men were not

arguing in the car. When they reached Vernon’s house, Eric got out and went to the street

to smoke a cigarette. Andre followed him, said something to him, and they began to fight.

Eric got on top of Andre, but Andre punched him and made Eric bleed. Eric got up, went

into the house, and locked the door. Andre wanted a towel, so he went in to the house

through the window. Andre then unlocked the door and everyone went in, but Chris stayed

outside. While outside, Chris heard faint bumping coming from the house, and then

everyone ran out.

¶13.   The men all went back and looked inside the house. There, they saw Eric lying in a

pool of his own blood. After they ran out of the house, Cadaro, Andre, Vernon, and Chris

jumped into the car. Chris said he did not really remember much after that, claiming he was

in shock.

                                               5
       Testimony of Officer Michael Reaves

¶14.   In addition to the three eyewitnesses called to testify, the State also called others to

testify as to the forensic evidence. Michael Reaves, an investigator with the Laurel Police

Department, was called to the stand. At the crime scene, he had observed that Eric’s body

was located “just at the feet of the front door.” His body was lying face-down with his hands

by his sides in a large pool of blood. Reaves also noticed what he believed to be arterial

blood spray along the walls near the body. He testified that as he was examining the body,

he was unable to find any other wounds aside from the fatal stab wound.

¶15.   During his testimony, Reaves stated that the blood spatters on the door would be

consistent with the door being open at the time of the stabbing. Blood droplets also were

found near the entrance to the hallway that led to the bedrooms. The police were able to

recover the knife from “around the corner.” The twelve-inch, general-purpose kitchen knife

was found with little to no blood on it. However, some spots were located on the sharp edge

of the knife. Reaves also testified that Andre’s clothing and the knife were sent to the

Mississippi Crime Lab for examination. Test results showed that Eric’s blood was on the

knife; however, Andre’s DNA was not on the knife. No testing was done on the clothing

sent to the crime lab.

¶16.   Reaves testified on cross examination that there was enough light in the house to get

around the house, and that he had to use his flashlight only at certain points. He did,

however, have to bring in portable lighting to finish the investigation. He also admitted that

no fingerprint testing was done on the block of knives or the knife that was used to stab Eric.

                                              6
       Testimony of Dr. Steven Hayne

¶17.   Dr. Steven Hayne, a medical examiner at the time of Eric’s death, also was called to

testify. He testified that the stab wound crossed Eric’s body slightly downward, going into

the chest wall, and had a depth of five inches. The knife went through the arch of the aorta

as well as the upper lobe of the right lung. The stab wound was fatal.

¶18.   The jury found Andre guilty of murder, and he was sentenced to life in prison. Andre

appeals his conviction and sentence to this Court and raises two issues on appeal.

¶19.   First, Andre argues he should be acquitted as a matter of law pursuant to the rule

found in Weathersby v. State, 147 So. 481, 482 (Miss. 1933), and its progeny, because he

was the only person present when Eric was stabbed. Jones claims the State’s only witness

who was present during the stabbing could not see what was happening due to the darkness

inside the house. Andre also contends that his version of the events that night was not

substantially contradicted by the evidence, and therefore he was entitled to an acquittal as a

matter of law.

¶20.   Second, Andre argues that the weight of the State’s evidence fails to support a guilty

verdict for murder. Therefore, the verdict should be reversed or reduced to manslaughter,

even when viewing the State’s evidence in the best possible light.

                                        ANALYSIS

       I.     The Weathersby Rule

¶21.   Andre contends that he should have been acquitted as a matter of law pursuant to the

Weathersby rule. In Weathersby, the Court held:

                                              7
       [W]here the defendant or the defendant’s witnesses are the only eye witnesses to
       the homicide, their version, if reasonable, must be accepted as true, unless
       substantially contradicted in material particulars by a credible witness or
       witnesses for the state, or by physical facts or by the facts of common knowledge.

Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).

¶22.   As stated in Johnson v. State, 987 So. 2d 420, 425 (Miss. 2008), this Court has held

that there are some circumstances where, even though the defendant and his witness are the

only eyewitnesses to the homicide, the Weathersby rule would not apply. The Court

narrowed the application of the Weathersby rule by stating that it would be unavailable

“where the defendant’s version is patently unreasonable, or contradicted by physical facts

. . . where the accused, following the slaying, gives conflicting versions of how the killing

took place; or he initially denies the act.” Johnson, 987 So. 2d at 425 (citing Blanks v. State,

547 So. 2d 29, 33-34 (Miss. 1989). In situations where the rule becomes inapplicable, the

case then becomes an issue for the jury.        The jury is to determine if the defendant’s

testimony is the more credible version of events and to decide either to convict or to acquit.

Johnson, 987 So. 2d at 425 (citing Blanks v. State, 547 So. 2d 29, 33-34 (Miss. 1989)).

¶23.   Andre contends that his version of the events from the night in question is reasonable

and is not materially contradicted by the other evidence. A review of the record indicates

otherwise. While the testimony of Vernon and Chris is contradictory in some respects, it also

materially contradicts Andre’s testimony. While Andre testified that Eric approached him

when the men arrived at Vernon’s house, both Vernon and Chris testified that Eric had

walked away from Andre, but then Andre had followed him, and a fight had ensued. Vernon


                                               8
and Chris also testified that Eric was the first person to enter the house, and that Andre

subsequently followed him. However, Andre testified that it was Eric who opened the door.

Vernon testified that, once inside the house, Andre went to the kitchen, grabbed the knife,

and attacked Eric when he returned to the living room. Andre, on the other hand, testified

that when Eric opened the door, he had a knife in hand, and the fight ensued. Clearly, the

testimony that Vernon and Chris provided was in direct contradiction to the testimony of the

defendant.

¶24.   Further, the physical evidence provided by the State also materially contradicted the

testimony of the defendant. Andre testified that Eric had opened the door with a knife in

hand and the fatal altercation had begun there. However, Officer Reaves testified that blood

droplets were found near the doorway leading to the bedrooms. This is consistent with

Vernon’s testimony that Eric and Andre started to fight after both were inside the house.

Officer Reaves further testified that there was enough light in the house to maneuver around

the house easily, and that the block of knives easily could be seen as one walked into the

kitchen.

¶25.   Because Andre’s testimony was substantially contradicted by the testimony of the

State’s witnesses and physical evidence, the Weathersby rule is inapplicable. The case was

a matter for the jury to decide. The jury accepted the State’s version of events and found

Andre Jones guilty of murder. Therefore, this assignment of error is without merit.

       II.    The Murder Verdict was not Supported by the Evidence.




                                             9
¶26.   Andre argues that the weight of the evidence presented does not support a finding of

murder. He argues that the evidence supports a finding that he acted in self-defense and that

he had no deliberate design to murder Eric. He argues alternatively that the evidence

presented meets the elements of manslaughter and should be considered a heat-of-passion

crime. However, the State contends that the evidence presented is sufficient to support the

elements of murder.

¶27.   This Court has made it clear that a conviction will be reversed only if “to allow [the

conviction] to stand would sanction an unconscionable injustice.” Bush v. State, 895 So. 2d

836, 844 (Miss. 2005). Further, this Court has said, “in considering whether or not the

verdict of a jury was contrary to the overwhelming weight of the evidence, this Court must

accept as true all the evidence which supports the State’s position, together with all

inferences reasonably flowing therefrom, in the light most favorable to the State’s theory of

the case.” Britt v. State, 520 So. 2d 1377, 1379 (Miss. 1988) (citing Haymond v. State, 478

So. 2d 297, 300 (Miss. 1985)). In the instant case, the State has proved that Andre did not

act in self-defense, nor did he lack deliberate design. The State also proved that Andre did

not act in the heat of passion and that the evidence was sufficient to meet all the elements of

murder. The evidence showed that Andre was the aggressor and instigator throughout the

day. Evidence indicated that there was no provocation from Eric, and Andre had intent the

moment he engaged Eric in the fight with the knife. Therefore, the verdict of the jury is not

so contrary to the evidence that allowing it to stand would be an unconscionable injustice.




                                              10
The verdict is supported by the weight of the evidence, and therefore, this assignment of error

is without merit.

       A.     Self-Defense

¶28.   In order for a homicide to be justified as self-defense, the actor’s apprehension of

danger must appear objectively real to a reasonable person of average prudence. Hart v.

State, 637 So. 2d 1329, 1339 (Miss. 1994). This Court, in Wade v. State, 748 So. 2d 771,

775 (Miss. 1999), held that the issue of justifiable self-defense presents a question of the

weight and credibility of the evidence, rather than sufficiency, and is to be determined by

jury. This Court further stated that “any factual disputes are properly resolved by the jury

and do not mandate a new trial.” McNeal v. State, 617 So. 2d 999, 1009 (Miss. 1993).

¶29.   Andre argues that the evidence demonstrates a case of justifiable self-defense. Andre

contends that, taking the State’s case in the best possible light, no reasonable juror could

convict Andre of murder. The State argues that the evidence presented shows that the death

of Eric was not in self-defense and should be considered murder.

¶30.   Andre testified at trial that the fatal fight had started when Eric had opened the door

to the house with knife in hand. Rather than run away, Andre chose to engage Eric, because

he felt that Eric was too close for him to run. He also testified that in their struggle, Andre

and Eric fell, and Eric did not get up. The State presented evidence that it was Andre who

grabbed the knife once he entered the house, and that Andre was the aggressor in the attack.

The jury was presented with both versions of the events. The jury resolved the factual

disputes and found Andre guilty of murder. The jury’s proper resolution of the factual

                                              11
disputes in the case does not mandate a new trial. Therefore, this assignment of error is

without merit.

              B.     Deliberate Design

¶31.   Andre also argues that the State failed to establish sufficient evidence to demonstrate

deliberate design to commit murder, and therefore, the theory of “imperfect self-defense”

should be applied to the case, as set out in Wade v. State, 748 So. 2d 771, 775 (Miss. 1999)

(citing Lanier v. State, 684 So. 2d 93, 97 (Miss.1996)). The State contends that the elements

of murder were proved by the evidence presented and the conviction of murder is proper.

¶32.   To prove murder, the State must show that a person was killed without the authority

of law, and the killing was done with the deliberate design to effect the death of the person

killed or of some other person. Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2006). The Court has

defined deliberate design, stating that “‘deliberate’ always indicates full awareness of what

one is doing, and generally implies careful and unhurried consideration of the consequences.

‘Design’ means to calculate, plan, contemplate . . . deliberate design to kill a person may be

formed very quickly, and perhaps only moments before the act of consummating the intent.”

Gossett v. State, 660 So. 2d 1285, 1293 (Miss. 1995) (quoting Windham v. State, 520 So.

2d 123, 127 (Miss. 1987)). This Court further clarified the definition of deliberate design by

stating, “Deliberate design, as a matter of law, may be inferred through the intentional use

of any instrument which based on its manner of use, is calculated to produce death or serious

bodily injury.” Wilson v. State, 936 So. 2d 357, 364 (Miss. 2006) (citing Jones v. State, 710

So. 2d 870, 878 (Miss. 1998)); Fairchild v. State, 459 So. 2d 793, 802 (Miss. 1984)).

                                             12
¶33.   Andre relies on Kirkland v. State, 573 So. 2d 681 (Miss. 1990) in support of his

argument that there was a lack of deliberate design. The Kirkland Court reversed a

manslaughter conviction and ordered a new trial on the finding that the weight of the

evidence did not support the manslaughter verdict. In Kirkland, the victim had been the

aggressor throughout the day and was armed at the time of the fight. Id. at 682. The two men

also had a history of violence between them, including a time when the victim had rammed

the defendant’s car in an attempt to push him into oncoming traffic, then later had beaten him

up. Id. at 682. On the day he died, the victim followed Kirkland, and a fight ensued at a stop

sign. Id. Given the men’s violent history and the fact that the victim had followed the

defendant and was armed, the Court was convinced that the shooting could be seen as

justified and remanded the matter for a new trial.

¶34.   In the instant case, Andre was the aggressor throughout the day. Andre and Eric also

had no prior history of violence. It is Andre’s contention that Eric had the knife first and

that during the course of the fight, the two men fell, and the knife penetrated Eric’s body.

Unlike the facts presented in Kirkland, Andre had a chance to run away and avoid the fight.

Instead, he followed Eric into the house and engaged him in a knife fight.

¶35.   It is also important to note that Andre’s “tussling” with a knife demonstrates deliberate

intent. The knife was a deadly weapon, and Andre knew the dangers of fighting with such

a weapon and should have been aware that use of the knife could result in serious bodily

injury or death. Wilson v. State, 710 So. 2d 357, 364 (citing Jones v. State, 710 So. 2d 870,



                                              13
878 (Miss. 1998); Fairchild v. State, 459 So. 2d 793, 802 (Miss. 1984)). Therefore, this

assignment of error is without merit.

              C.     Heat of Passion

¶36.   Andre claims that he acted “in the heat of passion” when Eric died. This Court

defined “heat of passion” in Mullins v. State as;

       A state of violent and uncontrollable rage engendered by a blow or certain
       other provocation given, which will reduce a homicide from a grade of murder
       to that of manslaughter. Passion or anger suddenly aroused at the time by
       some immediate and reasonable provocation, by words or acts of one at the
       time. The term includes an emotional state of mind characterized by anger,
       rage, hatred, furious resentment or terror.

Mullins v. State, 493 So. 2d 971, 974 (Miss. 1986). One of the primary elements of a heat-

of-passion crime is “immediate and reasonable provocation, by words or acts of one at the

time.” This Court has held that “it is essential that the excited and angry condition of the

party committing the act which would entitle him to the milder consideration of the law,

should be superinduced by some insult, provocation, or injury, which would naturally and

instantly produce, in the minds of ordinarily constituted men, the highest degree of

exasperation.” Preston v. State, 25 Miss. 383, 387 (1853). This Court further held that

“there must not only be passion and anger to reduce a crime to manslaughter, but there must

be such circumstances as would indicate that a normal mind would be roused to the extent

that the reason is overthrown and that passion usurps the mind destroying judgment.”

Windham v. State, 520 So. 2d 123, 127 (quoting Calvin v. State, 168 So. 75 (1936)).




                                            14
¶37.   In support of his argument that Eric was slain in the heat of passion, Andre relies

heavily on Wade v. State, 748 So. 2d 771 (Miss. 1999).             However, Wade also is

distinguishable from this case. In Wade, it was the victim who was the aggressor. The

victim, Simpson, had a four-year history of abusing Wade. On the night in question,

Simpson instigated the altercation by severely beating Wade’s head against tables shortly

before the shooting.

¶38.   In this case, there is evidence that Andre “was on” Eric all day. Vernon and Chris

testified that Andre had forced Eric to sit in the back seat of the car and that Andre had

followed Eric when Eric had tried to walk away. Vernon and Chris also testified that Eric

had tried to shake Andre’s hand but Andre had refused. This continued aggression toward

Eric, with no prior history of conflict, is enough to demonstrate malice and distinguish this

case from Wade.

¶39.   In the current case, there was no immediate or reasonable provocation. Evidence

shows that Andre was the aggressor throughout the day. He provoked fights with Eric.

Andre contends that there was no cooling-off period between the fight outside and when he

entered the house. Andre further contends that there was some provocation by the victim,

and that he reacted with more-than-reasonable force, resulting in Eric’s death. However,

there was no evidence of provocation from Eric. Andre followed Eric to the street, they

fought, and Andre then followed him to the house. The State presented evidence that Andre

grabbed the knife first, without provocation from Eric. Neither version of the story supports

a claim of heat-of-passion manslaughter. This is not a circumstance in which passion

                                             15
usurped the mind and destroyed judgment. Andre was fully aware of what he was doing

when he engaged in a knife fight with Eric. Therefore, this assignment of error is without

merit.

         III.   The Evidence was Insufficient to Support the Verdict.

¶40.     Andre Jones also mentions, in passing, that the evidence presented by the State was

insufficient to support the conviction. The critical inquiry when considering the sufficiency

of the evidence is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Morris v. State, 927 So. 2d 744, 748 (Miss. 2006) (citing Bush

v. State, 895 So. 2d 836, 843 (Miss. 2005)). In the instant case, there was testimony that

Andre was the first person to grab the knife and that he attacked Eric. The case largely

consisted of the State’s witnesses’ testimony against Andre’s testimony. This presents a

factual dispute to be resolved by a jury. We cannot conclude that any rational trier of fact

could not have found the essential elements of the crime beyond a reasonable doubt, when

the evidence is viewed in the light most favorable to the State. Accordingly, this assignment

of error is without merit.

                                      CONCLUSION

¶41.     The State presented witness testimony and physical evidence that contradicted

Andre’s testimony, thereby rendering the Weathersby rule inapplicable. The State presented

evidence that Andre did not act in self defense, nor did he lack deliberate design. Through



                                             16
the evidence presented, the State was able to prove Andre Jones’s action in Eric Rogers’s

death fit every element of murder. The judgment of the trial court is affirmed.

¶42. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
WITH CONDITIONS, AFFIRMED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS AND CHANDLER, JJ., CONCUR. GRAVES, P.J., CONCURS IN
RESULT ONLY.




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