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Jones v. State

Court of Appeals of Arkansas, Division II

May 10, 2017



          Robert M. "Robby" Golden, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          RAYMOND R. ABRAMSON, Judge

         A Pulaski County jury convicted Tyrun Lamont Jones of second-degree murder.[1]The jury sentenced him to 300 months' imprisonment with a firearm enhancement of 180 months. On appeal, he argues that his conviction should be overturned because the circuit court abused its discretion in excluding a witness pursuant to Arkansas Rule of Evidence 615. He also argues that the case should be remanded for resentencing because the prosecutor made improper statements during closing remarks at the sentencing stage of trial. We affirm.

         On February 13, 2015, the State charged Jones with first-degree murder of Alex Booker. The case proceeded to trial on May 3, 2016. On the first day of trial, Brianna Jordan testified that she lived in an apartment with Anita Henderson and that she had a sexual relationship with both Jones and Booker. She further testified that on December 24, 2014, she was at her apartment with Jones and Henderson and that Jones texted Booker on her phone to come to the apartment. She explained that Booker later came to the apartment, that Booker and Jones had a disagreement, and that Jones shot Booker with a gun. Jordan could not recall how many times Jones fired the gun or where Booker had been shot. She stated that immediately after Jones fired the gun, she, Booker, and Henderson fled the apartment.

         On the second day of trial, Henderson testified that she saw Jones shoot Booker four times in his back with a gun in her apartment. She also testified that she and Booker fled the apartment after the shooting. On cross-examination, defense counsel asked Henderson whether, following Booker's death, she had spoken with Jones in prison while she was visiting her brother. Henderson denied it. Defense counsel then asked Henderson whether she had told Jones that Jordan killed Booker, and Henderson further denied speaking to Jones.

         Following Henderson's testimony, defense counsel informed the court that it wanted to call Georgette Giles, who was not on the witness list and who had been present in the courtroom that day, to impeach Henderson's testimony. Defense counsel explained that Giles had discussed with him certain information that could be used for impeachment purposes "after the close of business yesterday" and that he did not notify the State about Giles's testimony because he believed Henderson would tell the truth on the stand. Defense counsel proffered Giles's testimony that about two months prior to the trial, while she was visiting Jones in prison, she heard Henderson tell Jones, "[L]et's put it all on [Jordan.]" Giles stated that she did not attend the first day of trial but that she was in the courtroom for the entirety of Henderson's testimony on the second day.

         The State objected to Giles's testimony, asserting that it violated Arkansas Rule of Evidence 615 because the rule had been invoked and Giles had been in the courtroom during Henderson's testimony. The court found that

the problem the Court sees in this case in addition to the inconsistencies in her testimony, is the fact that she reported this last night. That's before today. Defense counsel let this witness be called this morning and testify in this witness's presence to something he knew she was [going to] refute . . . Defense counsel knew . . . that this witness, this witness right here, that she was going to refute the testimony of Anita Henderson or might refute it depending on what Miss Henderson said. Yet you allowed the State to call that witness without bringing to the attention of the Court that a found contrary witness was in the Court Room . . . the Court's striking the witness from the list.

         Jones later testified on his own behalf. He stated that Jordan shot Booker in Henderson and Jordan's apartment and that Henderson was not present during the shooting. He explained that after he saw Jordan shoot Booker, he immediately fled the apartment. He admitted that he initially told police that a man named Quincy shot Booker.

         The jury convicted Jones of second-degree murder and found that he had used a firearm in committing the felony. The case then proceeded to the sentencing phase, and the prosecutor stated the following during closing remarks:

And you get to hear the emotional impact that [Henderson]'s out in the hall suicidal. And [Henderson] is a nice person. She's a good person. If she had ever been in trouble before, you would have heard it. She has. She's got emotional problems for seeing the violence that she has, that she had seen. And who started that? This man. So, [Henderson] had the same, the same opportunities as he did, yet ...

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