        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-KA-00188-COA

JEFFREY ALLEN A/K/A JEFFERY GREY                                           APPELLANT
ALLEN

v.

STATE OF MISSISSIPPI                                                         APPELLEE


DATE OF JUDGMENT:                         10/31/2013
TRIAL JUDGE:                              HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: GEORGE T. HOLMES
                                          ANDRE DE GRUY
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                        ANTHONY N. LAWRENCE III
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF CAPITAL MURDER AND
                                          SENTENCED TO LIFE IN THE CUSTODY
                                          OF THE MISSISSIPPI DEPARTMENT OF
                                          CORRECTIONS
DISPOSITION:                              AFFIRMED - 03/03/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Jeffrey Grey Allen appeals his conviction of capital murder and sentence of life

without the possibility of parole. On appeal, Allen claims that (1) the trial court erred in

allowing hearsay testimony of alleged prior bad acts and character evidence; and (2) the

verdict is not supported by the weight of the evidence. Finding no error, we affirm.
                                          FACTS

¶2.    On March 2, 2011, the Jackson County Sheriff's Department responded to a call about

the discovery of the body of Charles Ike Mason Jr. Sheriff's investigators entered Mason's

home and observed that he had been killed by a single gunshot to his back. Investigators also

observed that Mason's left pants pocket was turned out, but investigators found cash in

Mason's right pants pocket. Investigators discovered a Remington .22-caliber spent shell

casing on the floor just inside Mason's front door. The sheriff’s department sent Mason's

clothing to a laboratory for DNA analysis, specifically to examine the turned-out pocket, but

testing recovered no DNA evidence from the clothing.

¶3.    Donna Freeman, Mason's former girlfriend, and Allen were eventually arrested and

charged with murdering Mason during the commission of a robbery, in violation of

Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2014). Freeman and Mason were

romantically involved for approximately eight years. Although Freeman eventually began

a relationship with Allen, Mason continued to provide her with money, clothes, automobiles,

and other items.

¶4.    On December 7, 2011, Jermaine Sims, a Jackson County jail inmate, informed

investigators that Allen had given him "information" relating to Mason's death. Sims

testified Allen told him that on the day of the murder, he was with a female named Donna

and a "little young guy," whose name Sims did not know. Sims testified Allen told him that

Freeman shot Mason, and then afterwards, Allen removed $4,000 "out of the left front pocket

of the victim." Sims also testified that Allen told him Freeman went to Mason's home on the

day of the murder to ask for money, and that Mason refused to give her any money. Sims


                                             2
testified Allen said he "went in and got the gun and put another round in it" after Freeman

shot Mason. Allen allegedly told Sims that "the young guy" then came into the house after

Allen and raised the volume on the television. Allen informed Sims that he threw the rifle

in a creek, along with a wallet. Allen then gave the "young guy" some money, and also gave

his father $200 to "pay a bill.”

¶5.    Based on the information gathered from Sims, investigators questioned Joshua Davis.

Davis had previously lived next door to Allen and his family, and Davis was friends with

Mason. At trial, Davis testified that he, Allen, and Freeman used to smoke spice, a synthetic

marijuana, together. Davis testified that on March 1, 2011, Allen and Freeman picked him

up at a convenience store to drive Davis to his job at a farm. Davis testified the three smoked

spice in the car and ended up at Mason's house. Freeman exited the car, explaining that she

was going inside Mason's house to "get some clothes." Davis and Allen remained in the

vehicle, smoking spice and listening to the radio. Allen exited the vehicle about five minutes

later, but returned to the car within a few minutes. Davis testified that Freeman then came

out of the house, hysterical, yelling, "I just shot [Mason], and he's got the gun." Allen got

out of the car and tried to calm Freeman down. Davis testified that Allen then asked him to

go with him inside the house. Davis stated that he remained on the porch while Allen entered

Mason's residence. Davis observed a rifle on Mason's lap, and testified that Allen picked up

the rifle and "spun another shell through it in case [Mason] wasn't dead." Davis testified that

Allen then took money and a wallet from Mason's left pants pocket. Davis, Allen, and

Freeman then left the residence, and Allen threw the wallet, rifle, and Mason's cell phone off

of the "Black Creek Bridge."


                                              3
¶6.    Davis testified that once they arrived back at his house, Allen gave Freeman some

money and "told her if she was to tell anybody, she was going to end up like [Mason]."

Allen then gave Davis $300 and told him to keep his mouth shut.

¶7.    Davis pled guilty to accessory after the fact to Mason's murder. Although Davis

testified that he heard no conversation between Allen and Freeman about robbing Mason on

the day of Mason's murder, he testified that two weeks prior, he overheard a conversation

between Allen and Freeman during which Allen allegedly told Freeman he knew where

Mason hid his money, and they were "going to go and get it," meaning steal Mason's money.

When questioned about why he previously told investigators that Freeman exited Mason's

house with the rifle and mentioned nothing about observing a rifle on Mason's lap, Davis

responded that his "mind was not working right" and that he was intoxicated during the

events of March 1, 2011. Davis explained that his memory "just came back to him."

¶8.    Investigators interviewed Allen October 25, 2011. During the interview, Allen

admitted that he was with Freeman when she shot Mason and that he helped Freeman dispose

of the rifle. Allen stated he and Freeman went to Mason's house after dropping Davis off at

work so Freeman could borrow some money. He said Freeman went inside Mason's house,

and then came out a few minutes later, without a weapon, hysterically saying that she had

"shot the gun," but not indicating that she had actually shot Mason. Allen stated that he then

went inside and saw Mason still alive, lying on the kitchen floor and complaining repeatedly

about his back hurting. Allen said he observed the television on at a high volume. Allen

then grabbed the .22 rifle, which was on the floor, and asked Mason what was going on,

unaware that Mason had been shot. Allen told investigators that he grew concerned that


                                              4
Mason might try to shoot him, so he left the house and ejected a spent shell casing from the

rifle on the way out. Allen said that when he left the house, Mason was still alive and still

complaining about his back. Allen and Freeman got back in the car and left, with the rifle.

¶9.    Allen told investigators that as they drove away from Mason's house, Freeman

informed him that Mason had tried to "force himself on her," and she physically resisted by

slamming Mason against the sink and shooting him. Allen and Freeman then drove to a

bridge and threw the rifle into a creek. Allen later showed investigators where he had thrown

the rifle, and took them to the location where the rifle was eventually retrieved from a creek.

Investigators failed to recover a cell phone or wallet.

¶10.   Regarding Sims's allegation that Allen gave his father money, Allen informed

investigators that he and Freeman had pawned several items in the days prior to March 1,

2011. Investigators located several pawn receipts from February 28 through March 1, 2011,

with Freeman's and Allen's names on the receipts. At the trial, a video recording of Allen's

interview was played for the jury.

¶11.   In addition, the jury heard testimony from nine witnesses — eight of Mason's friends,

family, and associates, plus one customer — who all testified that Mason told them that

Freeman and Allen were stealing from him. The witnesses also expressed Mason's opinions

of Allen's character. The record reflects that Allen filed pretrial motions to exclude the

witnesses' testimony as hearsay and as irrelevant prior bad acts and character evidence under

Mississippi Rule of Evidence 404(b). The trial court overruled Allen's motions and allowed

the testimony.

¶12.   Mason's son, Charles Ike Mason III (Ike), testified that he had known Allen a long


                                              5
time, and that neither he nor any of Mason's other thirteen children liked Freeman

"freeloading" off of their father. Ike testified that he spoke to Mason on the telephone a week

before Mason's death, and Mason accused Freeman and Allen of stealing his checks. Ike

testified that he called Allen and told Allen not to go back out to Mason's house anymore.

Ike testified that he also spoke to his father on March 1, 2011, around 5:30 or 6:00 p.m. Ike

stated that Mason was cooking turnip greens, and Mason told Ike that he was upset because

Freeman and Allen had been out there "arguing or something."

¶13.   Allen Tubb, a friend and neighbor of Mason, testified that on March 1, 2011, he went

with Mason to purchase a tractor, which they took back to Mason's land. Mason operated

a salvage yard from his home, and when Tubb and Mason arrived at Mason's house,

customers were waiting for Mason, so Mason asked Freeman to drive Tubb home. Tubb

testified that Mason had informed him that Freeman and/or Allen were stealing things from

him, so Tubb asked Freeman to drop him off before getting to his house so that Freeman

would not know the exact location of his house. Once Tubb arrived home, he realized he had

forgotten his jacket, so he drove his four-wheeler back to Mason's house to retrieve his

jacket. While he was there, he saw Freeman and Allen, along with a customer. Tubb

observed Freeman and Allen getting what appeared to be "clothes and stuff" out of a travel

trailer. Tubb overheard Allen say they needed to hurry and leave because Allen was being

accused of stealing. Allen and Freeman drove off in a red car.

¶14.   Davis Williams also provided testimony. Williams met Mason on March 1, 2011,

when he went to Mason's salvage yard to buy parts. According to Williams, Mason told him

that "a guy named Jeffrey . . . and a friend [were] coming around and stuff, and . . . that


                                              6
they're no good, and they [were] wanting money, and he said he wasn't giving them no more

money." Williams described seeing Freeman and Allen riding in a small red Toyota and

asking Mason for money, which Mason refused to give them. Williams returned to Mason's

home the next morning to return a part that he had purchased from Mason, and met Tubb,

who happened to be there at the same time. The two men then discovered Mason's body.

¶15.   Kathy Mason, Mason's former wife, testified that she and Mason were married for

thirty-three years and still maintained a good relationship, despite no longer being married.

Kathy testified that she assisted Mason with his checking account and with paying bills and

taxes for the salvage business. Kathy testified about a conversation she had with Mason on

February 26, 2011, where Mason informed Kathy that he was upset because he and Freeman

were "having trouble and stuff." Kathy testified that Freeman had been stealing money from

Mason and writing checks on his account. Kathy testified that she had Mason's bank

statements, and that Freeman's signature was on Mason's returned checks, although Freeman

lacked authority to sign his checks. Kathy testified that Mason stated that Freeman “had got

her last [money] from him.”

¶16.   Danyiele Schenk and Mitchel Wright, an unmarried couple, were friends with Mason.

Both testified about events that occurred on February 27, 2011. On that date, Mason went

to Schenk and Wright's home, looking for a trailer to borrow. Wright was not home, so

Schenk met Mason in the yard and they looked at a trailer. Schenk said Mason told her that

he and Freeman were having a lot of problems, and that Freeman and Allen would "[hit] him

up for money all the time and [steal] things." Mason told Schenk that he was finished

dealing with both Freeman and Allen, and that he would not give Freeman any more money.


                                             7
Schenk testified that Mason "didn't like [Allen] at all," that he considered Allen "trouble,"

and that Freeman "was crazy to be with him."

¶17.   Wright also provided testimony that Mason "didn't think very much" of Allen. Wright

testified that he and Mason talked almost every day. Wright stated that Mason thought Allen

was "a dope head," and he testified that Mason and Allen had engaged in many verbal

conflicts. Wright testified that when Mason returned the borrowed trailer the next day, he

told Wright he was through with Freeman and Allen because of money and stealing, and

informed Wright that Freeman and Allen were using drugs.

¶18.   Matthew Furby, one of Mason's former employees, identified the rifle pulled from the

creek as belonging to Mason. Furby also provided testimony that Mason told him that

Freeman and Allen were stealing from him, and that Mason and Allen were not "seeing eye

to eye." Furby testified that shortly before Mason's death, Mason told him that Freeman and

Allen were at Mason's house, and Freeman distracted Mason while Allen "took a couple of

things." Mason confronted Allen about this, and the two argued.

¶19.   Frank Miller, Mason's close friend, testified that he lived with Mason until two weeks

prior to his death, explaining that he moved out of Mason's home because "it was trouble in

the making, and I didn't want to be around when it happened." Miller described the "trouble"

as issues between Mason, Freeman, and Allen. Miller stated specifically that Freeman stole

checks and money from Mason, and that Allen “composed another little problem” because

Mason and Freeman dated, and now Freeman was hanging around Allen. When questioned

about whether Mason told Miller that Allen stole from him, Miller responded: "I don't think

he mentioned that, but he mostly mentioned about [Freeman]. I'm sure he did come out there.


                                             8
Most all of them was out there stealing."

¶20.   The jury finally heard testimony from Paula Belk, who lived near Mason and had

known him for about fifty years. Belk testified that on the day before Mason's death, Mason

told her that Freeman "had gotten involved with a bad guy, and that he hated it for her."

Mason also informed Belk that Freeman and Allen stole checks, money, and a gun from him.

¶21.   The jury returned a verdict of guilty of capital murder, and the trial court sentenced

Allen to life imprisonment without the possibility of parole in the custody of the Mississippi

Department of Corrections. After the denial of post-trial motions, Allen filed this appeal.

                               STANDARD OF REVIEW

¶22.   Our well-established "standard of review for admission of evidence is abuse of

discretion." Anderson v. State, 62 So. 3d 927, 933 (¶13) (Miss. 2011).

¶23.   When reviewing whether the weight of the evidence supports a verdict, this Court

“will only disturb a verdict if the verdict is so contrary to the overwhelming weight of the

evidence that to allow the verdict to stand would sanction an unconscionable injustice.”

Hunt v. State, 81 So. 3d 1141, 1146 (¶19) (Miss. Ct. App. 2011).

                                       DISCUSSION

       I.     Hearsay Testimony

¶24.   Allen argues that the trial court erred in allowing hearsay testimony from nine hearsay

witnesses of alleged prior bad acts and character evidence attributed to Allen and his

codefendant, Freeman. Specifically, Allen claims the jury repeatedly heard that Mason

thought Freeman and Allen were stealing money from him; that Allen and Freeman were

using drugs; and that Mason thought Allen was "no good," a "bad guy," and a "dope head."


                                              9
Allen claims that the admission of testimony expressing such bad acts was irrelevant, as well

as more prejudicial than probative. He argues that no real proof of any prior bad acts by

Allen existed, simply testimony about Mason's accusations and suspicions. Allen cites to

Byrom v. State, 863 So. 2d 836, 847 (¶¶11-13) (Miss. 2003), and submits that repetitive

hearsay accusations of being a thief in association with Freeman rendered his trial unfair, as

the prejudice was cumulatively insurmountable.

¶25.   The record reflects Allen filed a motion in limine requesting the trial court to exclude

and suppress all of the prior-bad-acts testimony and bad character evidence. The State

argued in response:

       [I]t would be impossible . . . to tell the whole story of this case without talking
       about some of those thefts, without talking about the relationships that are
       involved in this case. . . . The thefts from the victim[ ] led to arguments. The
       arguments led to the victim saying[,] “I’m not going to give you any more
       money,” [and] led to the robbery, which led to the killing.

The trial court overruled the motion in limine, finding the testimony at issue admissible as

motive under Rule 404(b).

¶26.   Rule 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show that he acted in conformity therewith.
       It may, however, be admissible for other purposes such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.

We turn to precedent to guide our review of this assignment of error.

¶27.   In Pitchford v. State, 45 So. 3d 216, 245-46 (¶¶121-128) (Miss. 2010), the Mississippi

Supreme Court addressed the issue of the admissibility of evidence concerning prior bad acts.

The Pitchford court found that two evidentiary rules must be considered when determining


                                               10
whether to admit the evidence: Mississippi Rules of Evidence 404(b) and 403. 1 Pitchford.

45 So. 3d at 245-46 (¶124). The evidence must “be relevant to prove a material issue other

than the defendant's character[.]” Davis v. State, 40 So. 3d 525, 530 (¶16) (Miss. 2010)

(quoting Welde v. State, 3 So. 3d 113, 117 (¶15) (Miss. 2009)). Second, “the probative value

of the evidence must outweigh the prejudicial effect.” Id.; see M.R.E. 403. The supreme

court has held Rule 403 to be “the ultimate filter through which all otherwise admissible

evidence must pass.” Davis, 40 So. 3d at 530 (¶16) (quoting Welde, 3 So. 3d at 117 (¶15)).

¶28.   The record herein shows that the trial judge considered the admissibility of this

evidence relative to the permissible purpose provided by Rule 404(b) and the balancing

required by Rule 403. In the case before us, the transcript shows that when the trial court

ruled on the motion in limine, the trial judge asked the State how it intended to use Allen’s

prior bad acts to show motive. The trial court also observed that “the State apparently is not

concerned about the prejudicial aspects of this.” In response, the State assured the trial court

that it was concerned about prejudice towards Allen, but argued that “under [Rule 403], it

has to be weighed[;] . . . the jury would never be able to understand the case without knowing

that [Allen and Mason] . . . actually have traded licks in the past because of the theft of

property.” We further acknowledge that Allen failed to object to any testimony regarding

his specific bad acts. Where a party fails to raise a contemporaneous objection to a witness's



       1
           Rule 403 states:

       Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of
       time, or needless presentation of cumulative evidence.

                                              11
testimony, the party is barred from raising the issue for appellate review. Walker v. State,

671 So. 2d 581, 597 (Miss. 1995).

¶29.   A review of the record shows that the trial court herein found the evidence of the prior

bad acts to be admissible for the permissible purpose of showing motive. The trial court also

heard arguments that the evidence was more probative than prejudicial, and after considering

the arguments, the trial court agreed. As stated, we review the trial court's admission of this

evidence for abuse of discretion. Pitchford, 45 So. 3d at 246 (¶128). After our review, we

find no abuse of discretion by the trial court in finding the evidence to be admissible.

       II.    Weight of the Evidence

¶30.   Allen next asserts that the verdict of guilty of capital murder is not supported by the

weight of the evidence. Rather, Allen submits that the weight of the evidence presented at

trial only supports a conviction of accessory after the fact.2 Allen argues the capital-murder

conviction was not based on credible evidence; rather, he claims that the State's case

consisted almost entirely of a "jailhouse snitch," Sims, and an accomplice, Davis.

¶31.   As stated, the standard of review for deciding whether a jury’s verdict is against the

overwhelming weight of the evidence requires this Court to accept the evidence that supports

the verdict as true. Price v. State, 898 So. 2d 641, 652 (¶26) (Miss. 2005). This Court will

reverse only if convinced, upon review of the record, that the trial court abused its discretion

in failing to grant a new trial. Id. A new trial will be ordered if a review of the record

convinces the Court that the verdict is so contrary to the overwhelming weight of the



       2
        See Parks v. State, 884 So. 2d 738, 744 (¶17) (Miss. 2004) (discussing elements of
accessory after the fact).

                                              12
evidence that allowing the verdict to stand sanctions an unconscionable injustice. Pearson

v. State, 428 So. 2d 1361, 1364 (Miss. 1983).

¶32.   In the present case, the jury received jury instructions from the trial court for capital

murder, as well as accessory after the fact. A review of the instructions reflects that the trial

court properly instructed the jury on these offenses and their elements. Regarding capital

murder, the jury was instructed that if it found

       beyond a reasonable doubt and to exclusion of every reasonable hypothesis
       consistent with innocence that:

              1.      On or about March 1, 2011, in Jackson County,
                      Mississippi;

              2.      Jeffrey Grey Allen, alone or in conjunction with another,
                      was willfully, unlawfully, and feloniously engaged in the
                      commission of the felony crime of robbery of Charles Ike
                      Mason, Jr.;

              3.      Charles Ike Mason, Jr., a human being, was willfully,
                      unlawfully, and feloniously killed by any person engaged
                      in the commission of said felony crime of robbery; and

              4.      Said killing was without authority of law and with or
                      without any design to effect the death of Charles Ike
                      Mason, Jr., and not in necessary self[-]defense;

       then you shall find the Defendant, Jeffrey Grey Allen, guilty of capital murder.

¶33.   The trial court instructed the jury on the elements of accessory after the fact,

explaining: “The court instructs the jury that the term accessory after the fact, as used

elsewhere in these instructions, means a person renders assistance once the principal has

completed the commission of a felony to avoid being apprehended, arrested, or convicted.”

See Parks v. State, 884 So. 2d 738, 744 (¶17) (Miss. 2004) (discussing elements of accessory


                                               13
after the fact).

¶34.   During trial, the jury heard testimony from Davis stating that he overheard Allen and

Freeman discussing plans to steal Mason’s money. The jury also heard Davis’s testimony

that he rode to Mason’s house with Freeman and Allen on March 1, 2011, the day of the

murder. Davis testified that he and Allen remained in the car while Freeman went inside

Mason’s house. Davis further testified that after Freeman shot Mason, Allen went inside

Mason’s house and removed money from Mason’s pants pocket. Davis observed that Mason

was visibly dead when Allen removed the money from Mason’s pocket. Davis also stated

that Allen threw Mason’s gun, wallet, and cell phone into a creek. The jury also heard

testimony from Sims that Allen informed him that after Freeman shot Mason, Allen went

inside the house and removed money from Mason’s pants pocket.

¶35.   We recognize that the determination of the credibility of the evidence and the witness

testimony lies within the province of the jury. Waterman v. State, 822 So. 2d 1030, 1033

(¶11) (Miss. Ct. App. 2002). “It is the responsibility of the jury to resolve conflicts in

testimony. ‘They may believe or disbelieve, accept or reject the utterances of any witness.’”

Long v. State, 934 So. 2d 313, 317 (¶15) (Miss. Ct. App. 2006) (quoting Groseclose v. State,

440 So. 2d 297, 300 (Miss. 1983)). In acknowledging that the jury determines credibility,

we also acknowledge that the record contains sufficient evidence to support the jury’s verdict

finding Allen guilty of capital murder.

¶36.   Viewing the evidence in the light most favorable to the verdict, we do not find the

overwhelming weight of the evidence contradicts the jury's verdict of guilty of capital

murder. We recognize that all the portions of the testimony that Allen claims lack credibility


                                             14
“could just as easily have been rejected by the jury.” Accordingly, we affirm Allen’s

conviction and sentence.

¶37. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF
CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON
COUNTY.

     LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL, FAIR AND
JAMES, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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