E-Filed Document Jun :23: KA COA Pages: 22 IN THE COURT APPEALS OF THE STATE OF MISSISSIPPI NO.

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1 E-Filed Document Jun :23: KA COA Pages: 22 IN THE COURT APPEALS OF THE STATE OF MISSISSIPPI NO KA COA DARIUS SANTWAIN JONES APPELLANT V. STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT George T. Holmes, MSB No Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson MS Counsel for Appellant

2 IN THE COURT APPEALS OF THE STATE OF MISSISSIPPI NO KA COA DARIUS SANTWAIN JONES APPELLANT V. STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Darius Santwaine Jones, a/k/a: Crip Crazy; Darius S. Jones, Sr.; and Darius Jones. Respectfully submitted, DARIUS SANTWAIN JONES By: /s/ George T. Holmes George T. Holmes, His Attorney

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS TABLE OF CONTENTS TABLE OF AUTHORITIES ii iii iv STATEMENT OF ISSUES 1 STATEMENT OF ASSIGNMENT 1 STATEMENT OF THE CASE 1 FACTS 1 SUMMARY OF THE ARGUMENT 6 ARGUMENT 6 ISSUE NO. 1 6 ISSUE NO. 2 9 ISSUE NO CONCLUSION 16 CERTIFICATE OF SERVICE 17 iii

4 TABLE OF AUTHORITIES CASES: Blunt v. State, 55 So. 3d 207 (Miss. Ct. App. 2011) 15 Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct (1968) 9, 10 Carson v. State, 212 So. 3d 22 (Miss. 2016) 15 Cunningham v. State, 583 So. 2d 960 (Miss. 1991) 7 Edwards v. State, 469 So. 2d 68 (Miss. 1985) 9, 13 Ferrell v. State, 649 So. 2d 831 (Miss. 1995) 7, 8 Fultz v. State, 573 So. 2d 689 (Miss. 1990) 7, 8 Glidden v. State, 74 So. 3d 342 (Miss. 2011) 7 Glidden v. State, 74 So. 3d 353 (Miss. Ct. App. 2010) 7 Hunter v. State, 684 So. 2d 625 (Miss. 1996) 12 Jackson v. State, 689 So. 2d 760 (Miss. 1997) 7 Jones v. State ex rel. Mississippi Dep t of Pub. Safety, 607 So. 2d 23 (Miss. 1991) 9 Kelly v. State, 910 So. 2d 535 (Miss. 2005) 9 Luton v. State, 287 So. 2d 269 (Miss. 1973) 9 Lyles v. State, 12 So. 3d 532 (Miss. Ct. App. 2009) 12, 13 McClellan v. State, 34 So. 3d 548 (Miss. 2010) 6 McTiller v. State, 113 So. 3d 1284 (Miss. Ct. App. 2013) 15 Randall v. State, 806 So. 2d 185 (Miss. 2001) 13 Rigby v. State, 826 So. 2d 694 (Miss. 2002) 14 iv

5 Rogers v. State, 130 So. 3d 544 (Miss. Ct. App. 2013) 13 Sawyer v. State, 2 So. 3d 655 (Miss. Ct. App. 2008) 14 Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct (1973) 11 Shaffer v. State, 740 So. 2d 273 (Miss. 1998) 12 Sheffield v. State, 749 So. 2d 123 (Miss. 1999) 9 Sloan v. State, 368 So. 2d 228 (Miss. 1979) 12 State v. Flippen, 344 N.C. 689, 477 S.E. 2d 158 (1996) 14 United States v. Jones, 239 F. 3d 716 (5th Cir. 2001) 10 STATUTES none OTHER AUTHORITIES Miss. Const. (1890) Art Miss. R. Evid v

6 STATEMENT OF THE ISSUES ISSUE NO. 1: ISSUE NO. 2: ISSUE NO. 3: WHETHER EVIDENCE OF CONSTRUCTIVE POSSESSION WAS SUFFICIENT FOR CONVICTION OR WHETHER THE VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF EVIDENCE? WHETHER THE SEARCH OF JONES S VEHICLE IN RELATION TO THE SEIZED PISTOL WAS ILLEGAL? WHETHER THE JURY WAS IMPROPERLY INSTRUCTED ON JONES S STIPULATION OF BEING A CONVICTED FELON? STATEMENT OF ASSIGNMENT This case is already assigned. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Lauderdale County where Darius Jones was convicted of possession of a firearm by a convicted felon in Count II of the indictment. Count I charged possession of a controlled substance for which Jones was acquitted. Trial was held before the Honorable Justin M. Cobb, Circuit Judge, on January 24-25, Jones was sentenced to ten (10) years as a non-violent habitual offender and ordered to pay a $2000 fine plus other assessments for a total of $ Jones is presently incarcerated with the Mississippi Department of Corrections. He was represented at trial by the Honorable John C. Helmert, Jr., of Meridian. 1

7 FACTS According to the testimony of Meridian Police Officer Dustin Allen, on October 9, 2013, Allen and several other officers responded to an apartment complex around 8:30 p. m. [T , 133]. There Allen said he saw eight to twelve people, including Darius Jones, standing around. [T , ]. The complaint call to police alleged littering, being loud and otherwise causing a disturbance. Id. Allen approached Jones who was standing near his Cadillac automobile. Id. Allen testified that he recognized Jones, but did not know he was a convicted felon at the time. [T ]. Allen testified that he observed a handgun lying in plain sight on top of a backpack on the front seat of Jones s locked vehicle. [T , , 139; Ex. 2]. Allen said he asked Jones if the firearm was his and Jones answered, No. [T. 115, 134, 142]. Allen testified that he did not consider that the gun was illegal. [T. 134, 136]. Next, Allen said he asked Jones if Allen could go into Jones s vehicle to secure the firearm due to the large crowd and officer safety and, according to Allen, Jones said he could. [T. 115, 134, ]. Allen testified that Jones handed him the car keys and Allen unlocked the car and retrieved the pistol, a.45 caliber semi-automatic, and cleared it of its ammunition. [T , 134, ; Ex. 2]. When asked, Jones told Allen he did not know to whom the pistol belonged. [T. 147]. While retrieving the pistol, Allen said he smelled what he thought was marijuana and asked Jones if he could search the vehicle, and according to Allen, Jones gave consent 2

8 stating that there was nothing illegal inside. Id. A search of the backpack produced contraband which led to the drug charge. [T , ]. Allen said Jones was not handcuffed when he handed the keys to Allen. [T. 138]. At some point after the alleged drugs were found, Allen handcuffed Jones and learned that he was a convicted felon. [T. 126, , 146, 148]. After Jones was arrested, he was questioned about the gun and alleged drugs. [125-26; Ex. 5]. According to Allen and another investigator, Jones said the gun belonged to his mother. [T. 127, 172]. Jones offered the testimony of his aunt, Carolyn Lewis, who said that she received a call from Jones on the evening of October 9, [T. 197]. She testified that when she answered the call, she overheard a conversation between Jones and Allen in which Allen asked if Jones would give consent to search his vehicle. Id. Carolyn said Jones responded, No. Id. Carolyn said she next heard Allen instructing Jones to turn his phone off and turn around and get up against the car. [T , 200]. Carolyn testified that she heard Allen ask Jones several times for consent to search the car and that Jones declined each time. [T ]. She said she also heard Jones asking Allen why he was being handcuffed. [T ]. Jones also presented the testimony of Sophia Tell, Jones s former girlfriend. [T. 204, ]. Sophia testified that she had used Jones s Cadillac from morning until evening on October 9, [T. 205, ]. She said she drove her friend and the friend s boyfriend around and ran her own errands as well. Id. According to Sophia, her 3

9 friend had young children with her and that the friend had baby bags. Id. At the end of the day, Sophia dropped her friend off and went to the apartment complex, exited the vehicle and gave the car keys to Jones. [T. 205, 210, , ]. Sophia did not see the backpack. Id. She then went to an apartment to visit her child s aunt. Id. Sophia came out of the apartment after about thirty to forty-five minutes and observed all the commotion going on. Id. Sophia testified that the pistol seized by Allen from Jones s Cadillac was hers and that she had had it all day and had left it under the driver s seat when she arrived at the apartment complex. [T , 209, 222, 231; Ex. 2]. Sophia testified that she did not see Jones in the Cadillac at any time on October 9, [T. 211]. When Sophia came outside, she said she saw Jones handcuffed and overheard the conversation between Allen and Jones in which Allen asked for consent to search the Cadillac and Jones said, No. [T. 211, ]. Sophia testified she saw Allen reach in Jones s pocket, get his keys and unlock the car. [T. 212]. She stayed back. Id. Jones testified that he had been at the apartment complex since about 10:00 a.m. on October 9, 2013, playing video games with his cousin. [T. 238, 244]. Jones said Sophia came by that morning and borrowed his car and left. Id. Later that evening, Jones was still in the apartment and Sophia returned and gave the keys back to Jones. Thereafter, Jones and his cousin went outside and talked with others already outside and after about five minutes the police arrived. Id. Jones testified that Allen approached him and said he smelled marijuana and asked 4

10 if he could search Jones. [T. 239, 244]. Jones said he consented to the bodily search. Id. Jones testified that Allen retrieved his car keys and asked to whom the Cadillac belonged. Id. Jones said it was his and Allen then asked if he could search the vehicle and Jones told him, No. Id. Jones testified that Allen told him, Well, I m going to put you in handcuffs with the rest of the people. Id. Jones said Allen put the handcuffs on and sat him down on the curb, went over to his car, used the key to unlock it and proceeded to search the car claiming that he wanted to know what was in the book bag. [T , ]. After retrieving and searching the bag, Jones said Allen went back in the car and retrieved the pistol from under the seat and asked Jones if he was a convicted felon. [T. 240, 244]. Jones told him he was. Id. Jones said Allen asked him about three times for consent to search the vehicle while holding his keys. [T. 246]. At some point in the encounter, Jones said he used the speed-dial on his cell phone, which was in his pocket, to dial his aunt, Carolyn. [T. 245]. When the police were putting him in a patrol car, Jones said they discovered that his cell phone on an active call and seized it and terminated the call. [T. 240, ]. Jones said, when he was questioned three days later, investigators never asked him about the pistol, just about drugs. Id. So, he never told police that the pistol belonged to his mother. [T. 242]. In rebuttal, Officer Allen testified that he never put Jones on the curb, the pistol was in plain sight on the seat, not under the seat, and that he did not take Jones s keys or cell phone. [T. 256]. Allen repeated that Jones told them that the pistol belonged to his 5

11 mother. [T. 258]. Allen reiterated that he only entered Jones s car after Jones consented. [T. 259]. SUMMARY OF THE ARGUMENT The evidence was insufficient and the verdict was contrary to the overwhelming weight of evidence. The state failed to prove beyond a reasonable doubt that Jones consented to the entry of his vehicle by police for seizure of the pistol. The jury was improperly instructed on the legal effect of Jones s stipulation to being a convicted felon and was not given a required limiting instruction. ARGUMENT ISSUE NO. 1: WHETHER EVIDENCE OF CONSTRUCTIVE POSSESSION WAS SUFFICIENT FOR CONVICTION OR WHETHER THE VERDICT IS CONTRARY TO THE OVERWHELMING WEIGHT OF EVIDENCE? There was no evidence, direct or circumstantial, that Jones had been in or used his vehicle the entire day of October 9, There was no evidence to support even an inference that Jones exercised knowing dominion over Sophia s pistol or even that he had knowledge that Sophia s pistol was in his vehicle. Allen testified that he did not see Jones in the car and did not see him holding the subject firearm. [T. 136]. To support a conviction for illegal possession of some item, there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular [item] and was intentionally and consciously in possession of it. McClellan v. State, 34 So. 3d 548, 553 (Miss. 2010). 6

12 The State must provide sufficient evidence to prove that the defendant exercised dominion and control over the contraband. Jackson v. State, 689 So. 2d 760, 767 (Miss. 1997) (citations omitted). If the State cannot produce evidence other than proximity, that proves dominion and control of the contraband, the accused is entitled to acquittal. Cunningham v. State, 583 So. 2d 960, 962 (Miss. 1991) (citations omitted). When a defendant owns or controls premises where contraband is found, there is a presumption of constructive possession of the contraband. Ferrell v. State, 649 So. 2d 831, 834 (Miss. 1995). However, if the defendant s possession of the premises is not exclusive, there must be additional incriminating circumstances tying him to the contraband. Fultz v. State, 573 So. 2d 689, 690 (Miss. 1990). Even though mere physical proximity can be evidence of constructive possession, such proximity alone does not prove constructive possession. Ferrell, 649 So. 2d at 834. The case of Glidden v. State, 74 So. 3d 353 (Miss. Ct. App. 2010) (aff d on cert., Glidden v. State, 74 So. 3d 342, 343 (Miss. 2011) is similar but distinguishable on one key point. In Glidden, Glidden had been driving a borrowed truck with a large bag of marijuana directly under his feet. Glidden, 74 So. 3d at 355. The clear plastic bag was on the driver s side floorboard and was visible through the truck window. Id. From that evidence, reasonable jurors could have concluded that Glidden was guilty of possession of a controlled substance. Id. There was an inference from this evidence that Glidden must have seen the bag of marijuana on the floorboard despite his assertion that he had not and that the package 7

13 must have slid from under the seat when he applied the brakes. Id. In Jones s case, there was no such evidence from which a reasonable jury could have concluded that Jones knew that Sophia s pistol was in his car. In Fultz, supra, Fultz was convicted of possession with intent to sell more than one ounce of marijuana. 573 So. 2d Fultz was driving his sister s car and was pulled over for erratic driving. Id. He failed three field sobriety tests, was arrested and taken to the police station. Id. Later, the officer returned to the vehicle for an inventory search and found a duffel bag that was in the trunk which contained three large bags of marijuana. Id. Fultz denied any knowledge of the contraband found in the trunk of his sister s car. Id. On appeal, Fultz challenged the sufficiency of the evidence arguing that the state failed to prove that he knowingly and intentionally possessed the marijuana. Id. The state s argument was that constructive possession was proven because of Fultz s dominion and control over the contraband and the presence of another incriminating factor which was that he had a small amount of marijuana on his person. Id. The Fultz court characterized the doctrine of constructive possession [as] a legal fiction used by courts when actual possession cannot be proven. In its analysis, the Fultz court noted that the fact that Fultz had dominion or control over the marijuana [could not] be seriously disputed. Id. However, any such dominion and control was incidental and not proven to be knowing and intentional because the car was not his and he had only been driving it for a few hours. Id. Before that, the sister had been driving it. Id. The evidence and outcome were very similar in Ferrell, supra, 649 So. 2d

14 So, the evidence here was insufficient for Jones s conviction. The Court in Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985), said: [i]f the facts and inferences so considered point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting [a motion for directed verdict] is required. Alternatively, the verdict was contrary to the weight of evidence. When a jury s verdict is so contrary to the weight of the credible evidence or is not supported by the evidence, a miscarriage of justice results and the reviewing appellate court must reverse and grant a new trial. Kelly v. State, 910 So. 2d 535, ( 12) (Miss. 2005). A reversal and remand are required on a motion for new trial challenging the weight of the evidence when the trial court abuses its discretion in denying the motion. Sheffield v. State, 749 So. 2d 123, 127 ( 15) (Miss. 1999). Jones, therefore, respectfully requests a reversal and rendering or acquittal, or a new trial. ISSUE NO. 2: WHETHER THE SEARCH OF JONES=S VEHICLE IN RELATION TO THE SEIZED PISTOL WAS ILLEGAL? The state was obligated to establish that Jones voluntarily consented to the search of his automobile which resulted in the seizure of the pistol beyond a reasonable doubt. Luton v. State, 287 So. 2d 269, (Miss. 1973); Bumper v. North Carolina, 391 9

15 U.S. 543, 88 S.Ct. 1788, 20 L.Ed. 2d 797 (1968). At the close of the evidence, the trial judge made a ruling on Jones s pretrial motion to exclude, and trial objections to the introduction of, the fruits of the search of the vehicle including the firearm. [T , ]. The trial judge found that Jones consented to the search and seizure of the pistol. Id. However, the trial judge did not reference that his finding of valid consent was based on a burden of proof of beyond a reasonable doubt as required. Allen did not have probable cause to seize the pistol from Jones s automobile. When Allen first approached Jones, he did not have reason to believe or suspect that Jones was committing any crime. It is not unlawful in Mississippi to have a firearm in plain view inside of an automobile. Miss. Const. (1890) Art. 3, 12. Moreover, Allen had no knowledge at that point that Jones was a convicted felon. Allen stated that he sought access to the pistol for safety concerns. However, any disturbance which had occurred had been quelled by the arrival of several other law enforcement officers who had arrived before Allen. [T. 114, 133, 135]. Regardless, it has been held that the mere presence of a firearm alone does not create an exigency. United States v. Jones, 239 F. 3d 716, 720 (5th Cir. 2001). The record, therefore, clearly indicates that Allen was on a mere fishing expedition without any articulable expectation of discovery evidence of a crime and without any justifiable safety reason to seize the subject firearm. Allen did not ask Jones anything about the alleged disturbance. It is suspect that Allen could not recall the names of any 10

16 of the other police officers present and the state did not offer the testimony of any other police officers. [T. 114]. Allen s testimony produced substantial credibility concerns regarding whether the trial court should have believed Allen s version of events over Jones s and his witnesses who consistently said that Jones refused consent several times. A determination of voluntary consent must take into account the totality of circumstances. Jones v. State ex rel. Mississippi Dep t of Pub. Safety, 607 So. 2d 23, 27 (Miss. 1991) (Citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973)). Here, the trial judge apparently did not apply the correct burden of proof and did not take into consideration, based on his bench opinion, factors which established the unreliability of Officer Allen s testimony. Therefore, Jones respectfully prays that the court will reverse and render the guilty verdict in this case based on the state s failure to prove a valid consent to search his automobile and seize the pistol. ISSUE NO. 3: WHETHER THE JURY WAS IMPROPERLY INSTRUCTED ON JONES STIPULATION TO BEING A CONVICTED FELON? Jones stipulated that he was a convicted felon as of October 9, 2013, and that stipulation was announced to the jury without any contemporaneous instruction from the trial judge. [T , 109]. The state requested Instruction S-8A which was granted over Jones s objection. [T , 300; R. 39; RE 16]. Given as Instruction 6, it read: The State and the Defendant have agreed and stipulated that the Defendant 11

17 had at least one felony conviction prior to the date of the charged offense in this case; therefore, you shall consider that fact to have been proven beyond a reasonable doubt as to Count II. [R. 38; RE 16]. Jones s position is that Instruction S-8A is peremptory and does not comply with the approved instruction in this context particularly that it has no limiting language on the jurors use of the stipulation. So, the error is twofold. The state should never be afforded a peremptory instruction, because the burden of proof in a criminal case never shifts from the State. Sloan v. State, 368 So. 2d 228, 229 (Miss. 1979). The State is required to prove every material element of the indictment beyond reasonable doubt. Id. In Shaffer v. State, 740 So. 2d 273, 282 (Miss. 1998), the defendant was convicted of murder and sexual battery. The Supreme Court reversed because of an erroneous jury instruction which prevented the jury from deliberating all of the statutory elements of the case thus diluting the state s burden of proving each element beyond a reasonable doubt. The Shaffer court found the error fundamental, stating, [i]t is axiomatic that a jury s verdict may not stand upon uncontradicted fact alone. The fact must be found via jury instructions correctly identifying the elements of the offense under the proper standards... if the jury ha[s] incorrect or incomplete instructions regarding the law...reversal is generally required. See also, Hunter v. State, 684 So. 2d 625, 636 (Miss. 1996). The Shaffer court also confirmed that, if the state fails to prove each element of an offense beyond a reasonable doubt, a resulting conviction is, as a matter of law, invalid. 746 So. 2d 282. The same principles were applied by the Court of Appeals in Lyles v. State, 12

18 12 So. 3d 532, (Miss. Ct. App. 2009). Accordingly, a stipulation in a criminal case does not authorize the granting of a peremptory instruction. Rather, the legal effect of a stipulation merely satisfies the state s obligation to present proof of the facts stipulated to exist. The Mississippi Supreme Court has held that the effect of a stipulation to an element of a crime is that the element is conclusively established without the State having to submit further proof to the fact finder. Randall v. State, 806 So. 2d 185, 236 ( 152) (Miss. 2001). So, a jury in a criminal case should only be informed and instructed that the parties have stipulated to certain facts and such instruction should be read by the trial court and jury as a part of the whole set of instructions. The legal effect of a stipulation is similar to a legal presumption. In Edwards, supra, the court reversed a food stamp fraud conviction under a statute which created an mandatory presumption of intent to defraud for failing to notify authorities of a change in circumstances. 469 So. 2d 71. The Edwards court explained that any kind of presumption must not undermine the fact finder s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. As noted by the Court of Appeals in Rogers v. State, 130 So. 3d 544, 548B50 (Miss. Ct. App. 2013), [a] stipulation entered into between the parties has the effect of removing a question of fact from the jury s consideration. Neither party need present evidence or show proof of the existence of such facts that are contained within the stipulation. So, the stipulation is substituted for proof[,] and [it] dispenses with the need for evidence. Id. 13

19 (Quoting State v. Flippen, 344 N.C. 689, 477 S.E. 2d 158, 164 (1996)). According to Rigby v. State, 826 So. 2d 694, 702B03 (Miss. 2002), the instruction regarding a stipulation to a prior conviction should conform to the following language: The court instructs the jury that the Defendant has stipulated to one element of the crime of which he/she is currently charged. That element is [a prior felony conviction]. The court instructs the jury that [this] prior conviction[] of the Defendant may not be considered as evidence that the Defendant committed the [crime] with which he/she is currently charged. [It] may, however, be used for the limited and sole purpose of proving the prior conviction[] element of the crime [charged here]. A contemporaneous limiting instruction for the prior conviction evidence is a legal requirement under Miss. R. Evid If the court admits evidence that is admissible against a party or for a purpose but not against another party or for another purpose the court, unless expressly waived or rebutted, shall restrict the evidence to its proper scope, contemporaneously instruct the jury accordingly, and give a written instruction if requested. (Amended eff. July 1, 2015) So, at a minimum, there should have been a contemporaneous limiting instruction by the trial judge when the stipulation was announced. Since there was no limiting instruction, Jones s trial was rendered unfair. As an alternative argument, Jones respectfully suggests that his trial counsel was deficient in not requesting a Rule 105 limiting instruction regarding the stipulation to the prior conviction. The authority to stipulate to a prior felony and the need for a limiting instruction is a well-established principle due to the inflammatory effect the prior conviction can have on a jury s deliberation. Sawyer v. State, 2 So. 3d 655, 659 (Miss. Ct. App. 2008). 14

20 Deficiencies of trial counsel s seeking proper instructions have been held to constitute ineffective assistance of counsel and reversible error. McTiller v. State, 113 So. 3d 1284, 1291 ( 23) (Miss. Ct. App. 2013); Carson v. State, 212 So. 3d 22, (Miss. 2016) (deficient but not prejudicial). In Blunt v. State, supra, the Court of Appeals found that Blunt s trial counsel was ineffective, under a plain error analysis, for not requesting a proper instruction which accurately stated the applicable rules of law on self-defense. 55 So. 3d ( 4, 9-10, 13, 16-17). Jones s trial counsel was likewise ineffective for not seeking to protect Jones with a limiting instruction about the jury s treatment of the stipulated prior conviction. In McTiller, supra, the defendant s trial counsel did not request an instruction on several defenses available to McTiller upon which his whole defense rested. 113 So. 3d ( 22-24). The Court of Appeals reversed finding that McTiller s counsel was prejudicially ineffective. The lack of a limiting instruction in conjunction with the stipulation of a prior felony here was just as prejudicial to Jones as the lack of defense instructions in Blunt and McTiller. Jones stipulates that the record is sufficient for the appellate court to review this ineffective assistance of counsel argument. 15

21 CONCLUSION Jones primarily respectfully requests that the Court reverse and render the conviction here for insufficient evidence. Alternatively, Jones respectfully requests reversal with remand for a new trial. Respectfully submitted, DARIUS SANTWAIN JONES By: /s/ George T. Holmes George T. Holmes, His Attorney 16

22 CERTIFICATE I, George T. Holmes, do hereby certify that I have this the 23d day of June, 2017, electronically filed the foregoing Brief with the Clerk of the Court using the MEC system which issued electronic notification of such filing to Hon. Jason L. Davis, Assistant Mississippi Attorney General; and, counsel also this day mailed a hard copy to the following persons not notified by the MEC system by U. S. Mail, first class postage prepaid: Hon. Justin M. Cobb, Circuit Judge, P. O. Box 5631, Meridian MS 39302; Hon. Bilbo Mitchell, Dist. Atty. P. O. Box 5163, Meridian MS /s/ George T. Holmes George T. Holmes George T. Holmes, MSB No Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson MS gholm@ospd.ms.gov Counsel for Appellant 17