Deshaude Jones a/k/a Deshaude Lakeith Jones v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-KA-01124-COA

DESHAUDE JONES A/K/A DESHAUDE APPELLANT
LAKEITH JONES

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/09/2022
TRIAL JUDGE: HON. DALE HARKEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
DESHAUDE JONES (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAUREN GABRIELLE CANTRELL
DISTRICT ATTORNEY: ANGEL MYERS McILRATH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 02/04/2025
MOTION FOR REHEARING FILED:

EN BANC.

McCARTY, J., FOR THE COURT:

¶1. DeShaude Jones was confronted by an acquaintance, Troy Taylor, in the parking lot

of a bar. Jones pulled out a gun and fired multiple shots at Troy, killing him. Jones was

charged with first-degree murder and felon in possession of a weapon. His indictment was

later amended to charge him as a violent habitual offender. At trial, he argued he acted in

self-defense, claiming Troy had previously threatened him with a gun on several occasions.

A jury found Jones guilty of both charges, and the trial court found sufficient evidence

proving his status as a violent habitual offender. Jones was ordered to serve two life
sentences without parole eligibility.

¶2. Jones initially appealed through counsel, arguing the trial court erred by refusing to

give a jury instruction on heat-of-passion manslaughter and a jury instruction on the defense

of necessity. He subsequently filed a separate brief pro se, claiming his indictment

insufficiently charged him as a habitual offender; his status as a violent habitual offender was

not proven beyond a reasonable doubt; and his Sixth Amendment right to confront witnesses

was violated at his sentencing. Finding no error, we affirm on all grounds.

BACKGROUND

¶3. Jones moved from Chicago, Illinois, to Ocean Springs, Mississippi, in 2015. As of

2018, Jones had been hanging out at his friend Hayes Butler’s apartment a couple of times

a week. Troy was Butler’s barber and came by the apartment one day while Jones was there.

The pair had a conversation about Troy’s drug use in which Jones recalled telling Troy,

“[T]hat[’s] poison, that ain’t good for you,” and “that’s really not a good look.”

Prior Incidents

¶4. Around springtime that same year, Jones was at Butler’s apartment when Troy showed

up. According to Jones, Troy was drunk, beat on the door, and asked one of Butler’s

roommates to sell him heroin. Jones said he made another remark to Troy about heroin being

bad for him and recounted that Troy “immediately got offensive” and “was like, well, who

the hell you think you is? You ain’t better than nobody else.” Jones testified that while Butler

and Butler’s roommate attempted to calm Troy down, “ he slipped behind me” and “grabbed

me in a yoke, like, around my neck.” Jones said after he managed to get out of Troy’s

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chokehold, Butler and Butler’s roommates kicked Troy out of their apartment. But Troy did

not leave right away. Instead, Troy remained outside, “walking back and forth, throwing his

hands up, [and] hitting his fist in his hands.” Jones recounted how Troy “took off his shirt”

and was “going off” saying, “Tell him [(Jones)] to come outside.” Troy finally left after

about fifteen to twenty minutes.

¶5. Troy’s wife, Jasmine Taylor, testified at trial about a later incident at a Wendy’s

restaurant. Jasmine disclosed that Troy went to Wendy’s on his lunch break one day and saw

Jones in the parking lot. Troy told her that Jones had pointed a gun at him.

¶6. According to Jones’s testimony, he then encountered Troy in August 2018 while

attending a child’s birthday party. Jones said he was sitting on a staircase smoking a cigarette

while the children were playing outside. He recalled that Troy walked up and pointed a gun

at him. Some of the children saw Troy with his gun and screamed, so he put the gun away

and walked off. Jones then watched as Troy got in his car, made eye contact with Jones, and

stared him down while speeding off.

¶7. A couple of weeks later, around Labor Day, Jones and his son were at a laundromat

loading clothes into their car when Troy and another man drove up. Jones testified that Troy

“put his gun, like, right on the windowsill of the car and he [was] like yeah, yeah, I told you

I’ll see you.” Troy’s passenger tapped him, urging him to leave, and he eventually sped off

laughing.

¶8. According to Jones, he was at a barbershop a week later when he received “some

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concerning information about Troy.”1 Jones testified that based on the information he

received,

I knew at that point it’s time for me. I said I have to get some protection. I said
it’s that time because Troy is getting too close to my home area. . . . [A]fter I
go get my hair cut, I made it up in my mind, I say I got to get me some
protection.

Jones explained that he meant he wanted to buy a gun. He further explained to the jury that

he wanted a gun because

I feel like I had to. . . . [T]hose two instances where I didn’t have a gun, that
could have been it for me. That could have been my life and I wasn’t able to
protect myself or my son on either occasion and that feels – that’s not a good
feeling not being able to protect yourself or your son.

Jones specifically testified, “I knew I didn’t supposed to have a gun but I literally felt like I

at least got to protect. I’m a man, so I feel like I have to protect myself.” (Emphasis added).

Jones stated he “rode around Biloxi” basically “just asking around, like did anybody know

where I can buy a firearm that’s not – that I can just get without anybody knowing.”

According to Jones, he was successful and purchased a gun from a man around Labor Day.

Jones testified that he immediately started carrying the gun with him on a regular basis. But

Jones also admitted that he had not seen Troy again after the laundromat incident—until the

night of the shooting.

The Night of the Shooting

¶9. On the evening of September 15, 2018, Jones and his wife went to Kahuna’s bar in

Ocean Springs. At some point, Jones walked outside to talk to Anheuser Mitchell, a drug

1
Jones was precluded from giving any further explanation at trial due to hearsay
objections.

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dealer nicknamed “Fresh.” Fresh was sitting in his car in the parking lot behind the bar.

Sometime after midnight, a confrontation between Jones and Troy occurred in Kahuna’s

parking lot near Fresh’s car. Jones testified that when Troy “popped up” behind Fresh’s car,

he was surprised “because I’m not expecting him to be there. . . . Troy was the last person

that I expected to see[.]”

¶10. Jones told the jury that Troy began exchanging heated words immediately, saying,

“[Y]eah, Ocean Springs is small, ain’t it,” and “I ain’t no b**ch.” According to Jones, Troy

“was just ranting and raving” like, “[M]an, you think because you from Chicago and this and

this and that.” He testified that he told Troy, “I told you, man, I’m not on that.” And when

asked by counsel what he meant, Jones explained, “I’m not trying to be into it with you. I’m

not, like, getting into petty squabbles and doing all this back and forth, ducking and dodging

you and worried about if you got a gun every time I see you.” Claiming he “was trying to de-

escalate the situation,” Jones told the jury he held out his hand to shake with Troy, but he

“smacked my hand down and right when he smacked my hand down, he swung but he didn’t

get a full blow because I spent back. . . .”

¶11. Fresh testified he had been sitting in his car on the phone when the altercation began

but eventually got out. He told the jury he did not hear Troy threaten to harm or shoot Jones,

hit him, or witness Troy pull a gun on him. He also stated that Jones was the only person he

saw with a gun that night, and nothing Troy did made him think Troy would shoot Jones.

¶12. Fresh testified that he attempted to intervene and recalled telling the two to break it

up and advising Troy to leave. Also, Jones later recounted Fresh “telling me, man, just leave

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it alone.”

¶13. Fresh initially told law enforcement officers that at this point, Troy “asked [Jones]

what he want to do, do he want to fight or do he want to shoot him [(Troy)].” He further

recounted that Jones “just told him you think I’m playing with you[?]” In contrast, Jones

recalled saying to Troy, “[M]an, I’m too old to be out here fighting,” and Troy responding,

“[L]ike, oh, yeah? What? So what you want, to get shot?”

¶14. According to Jones, at that moment, “Fresh had his arm – he had his arm on Troy’s

shoulder, wrapped around Troy’s shoulder, trying to calm him down.” Jones recounted that

“[w]hen [Troy] said did I want to go get shot, his exact movement was he reached in his

waist line.” Jones testified that Troy’s “shirt was hanging, so he reached up under his shirt.

And Fresh’s exact words was, Troy don’t do that. Don’t do that, Troy.” As for the moments

that led up to him pulling out his gun, Jones testified:

I said man, I’m not fixing to let him shoot me. I’m not fixing to let him shoot
me in my back. . . . So as Fresh is telling him don’t do that, all I thought about
was not this time. I got my gun on me now, I can protect myself this time. So
in an instant I pulled my gun.
....

I don’t want him to pull his before mine. That was my main thing I was
thinking, I got to pull mine before his. Because last time he beat me to the
punch every time and I didn’t have one on me.
....

I just knew gun. All in my mind, I know he got a gun, I got to get him before
he get me.

(Emphasis added).

¶15. Fresh recounted that Jones “fired the first shot, like, kind of down at, like [Troy’s]

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legs. And he shot again and then he raised the gun up and he shot a couple of more times.”

Fresh explained that when Jones pulled his gun out, “[Troy] got, like, in a – I guess turned

around and, like, took off, like, running away.” (Emphasis added). Several other

witnesses—including a security guard from Kahuna’s bar and Troy’s wife Jasmine—testified

that Troy attempted to run away from Jones, but Jones followed after him and continued to

shoot anyway.

¶16. Kahuna’s bar’s motion-activated security camera in the parking lot was triggered

during the altercation between Troy and Jones and captured the shooting on surveillance

video. Law enforcement officers testified that in the video, Troy can be seen going in the

opposite direction of Jones. Meanwhile, Jones advanced toward Troy and continued to shoot.

He fired a total of eleven bullets, striking Troy from behind four times and killing him in the

parking lot. Law enforcement officers also reported that there was no gun found in Troy’s

possession at the scene.

¶17. When asked by counsel why he continued to shoot at Troy, Jones admitted,

I just knew in my mind if I don’t get him, eventually he’s going to get me. That
was my thought. . . . I just – it was just, like, one of those, like, I wanted it to
be over. . . . I’m not fixing to die right here tonight. I could have been dead on
both of those prior occasions. I just said I’m not fixing to die right here
tonight.

After he shot Troy, Jones said he left the scene and threw the gun in a pond.

Procedural History

¶18. Jones was arrested and indicted on charges of first-degree murder for the death of

Troy and felon in possession of a weapon. The State subsequently discovered that Jones had

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three prior convictions in Illinois and moved to amend his indictment to enhance his sentence

as a violent habitual offender. The trial court allowed the State to amend Jones’s indictment,

and Jones did not object or otherwise challenge his prior Illinois convictions at that time.2

After his trial, the jury found him guilty of both charges.

¶19. At the hearing on the habitual offender enhancement, the State submitted three

judgments of convictions from Illinois into evidence. The documents contained the following

information: in June 2001, Jones plead guilty to robbery and was given a four-year sentence;

in July 2005, he was convicted on two counts of unlawful delivery of a controlled substance

and ordered to serve two eight-year concurrent sentences; and in September 2010, he was

convicted of aggravated unlawful use of a weapon and sentenced to serve six years. The State

also admitted into evidence a certified movement sheet from the corrections department in

Illinois, which reflected the defendant’s incarceration for his prior felonies. The trial court

found the evidence was sufficient and adjudicated Jones as a violent habitual offender. He

was sentenced to serve two life sentences without the possibility of parole in the custody of

the Mississippi Department of Corrections.

DISCUSSION

¶20. Through counsel, Jones raises two claims of error related to jury instructions.

Specifically, he argues that he was entitled to a jury instruction on heat-of-passion

manslaughter as an alternative theory of his defense to murder. He also alleges he presented

2
The amended indictment listed the dates of his prior felonies as June 2001, July
2005, and September 2001. The September date contained a scrivener’s error, as the
judgment of conviction showed the third prior conviction occurred in September 2010.

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sufficient evidence to receive a necessity defense instruction to cover his sole defense against

the charge of possession of a weapon by a felon.

¶21. After receiving permission from this Court, Jones subsequently filed a pro se

supplemental brief, asserting three additional claims for relief. See MRAP 28(b). All three

of his pro se claims raise issues related to whether his habitual offender status was properly

indicted and sufficiently proven.3

I. The heat-of-passion manslaughter instruction was properly
rejected.

¶22. Jones argues that the trial court erred in refusing to give the jury his requested

instruction on the lesser-included offense of heat-of-passion manslaughter. Jones was

charged with murder but also requested a manslaughter instruction for the jury to consider

whether he had killed Troy in the “heat of passion.”

¶23. “[W]e review the decision of the circuit court to refuse a lesser-included offense

instruction de novo.” Davis v. State, 380 So. 3d 937, 941 (¶10) (Miss. Ct. App. 2023). “[I]t

is well settled that ‘manslaughter is a lesser-included offense of murder.’” Allen v. State, 380

So. 3d 318, 326-27 (¶39) (Miss. Ct. App. 2024) (quoting Anderson v. State, 361 So. 3d 609,

614 (¶13) (Miss. 2023)). However, “the evidence must warrant an instruction on the

3
After he filed his pro se supplemental brief, Jones filed an additional “Addendum
to Supplemental Brief.” Because the additional documents do not conform with the briefing
schedule or our Rules, we do not consider them. See MRAP 28(b) (allowing the filing of a
singular “pro se supplemental Brief of the Appellant,” which “may address issues not raised
by counsel, but such issues must be based on the record”). Furthermore, to the extent the
document “raise[s] new issues not preserved in the principal briefs, they are procedurally
barred, for as a general rule, our appellate courts ‘do not consider issues raised for the first
time in an appellant’s reply brief.’” Jones v. State, 382 So. 3d 558, 566 n.2 (Miss. Ct. App.
2024) (quoting Biegel v. Gilmer, 329 So. 3d 431, 433-34 (¶11) (Miss. 2020)).

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lesser-included offense before it can be granted.” Pierce v. State, 107 So. 3d 1011, 1014

(¶11) (Miss. Ct. App. 2012) (quoting Graham v. State, 582 So. 2d 1014, 1017 (Miss. 1991)).

“The court may refuse an instruction which . . . is without foundation in the evidence.”

Edwards v. State, 357 So. 3d 1120, 1128 (¶23) (Miss. Ct. App. 2022) (emphasis omitted)

(quoting Gebben v. State, 108 So. 3d 956, 966 (¶31) (Miss. Ct. App. 2012)). “Each case must

depend upon its own facts and circumstances.” DeJohnette v. State, 385 So. 3d 1231, 1245

(¶46) (Miss. Ct. App. 2023) (quoting Wade v. State, 724 So. 2d 1007, 1011 (¶13) (Miss. Ct.

App. 1998)).

¶24. “The test for determining whether a manslaughter instruction based on a

heat-of-passion theory is warranted is ‘whether the defendant acted in the heat of passion and

without malice.’” Neese v. State, 993 So. 2d 837, 850 (¶31) (Miss. Ct. App. 2008) (quoting

Moody v. State, 841 So. 2d 1067, 1097 (¶98) (Miss. 2003)).

¶25. Heat-of-passion is “a state of violent and uncontrollable rage engendered by a blow

or certain other provocation given[.]” DeJohnette, 385 So. 3d at 1245 (¶46) (quoting

Westbrook v. State, 29 So. 3d 828, 835 (¶26) (Miss. Ct. App. 2009)). The term entails “a state

of mind marked by passion overthrowing reason.” Allen, 380 So. 3d at 327 (¶41). This

“heat-of-passion standard is not subjective.” DeJohnette, 385 So. 3d at 1245 (¶46). Rather,

“[t]he question is an objective one, being whether a reasonable person would have been so

provoked.” Neese, 993 So. 2d at 850 (¶31) (quoting Moody, 841 So. 2d at 1097 (¶98)).

¶26. But simply because someone has experienced an emotional response, of any kind,

does not require the instruction. Instead, “the provocation must be some act that ‘usurps the

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mind destroying judgment.’” DeJohnette, 385 So. 3d at 1245 (¶46) (quoting Sanders v. State,

103 So. 3d 775, 778 (¶11) (Miss. Ct. App. 2012)). Similarly, “words alone are not enough

to require a heat of passion manslaughter instruction.” Cooper v. State, 977 So. 2d 1220,

1223 (¶11) (Miss. Ct. App. 2007). Also, “physical acts like ‘pushing or shoving’ are

‘insufficient to require the instruction[.]’” DeJohnette, 385 So. 3d at 1245 (¶46) (quoting

Cooper, 977 So. 2d at 1223 (¶11)).

¶27. For illustration, in Allen, the defendant was charged with shooting and killing three

people. 380 So. 3d at 319-20 (¶1). The trial court gave the defendant’s requested self-defense

and imperfect self-defense instructions but refused to give a heat-of-passion manslaughter

instruction. Id. at 326 (¶36). When asked if “wrestling and tussling was what caused [him]

to use the gun,” the defendant testified, “No. I seen the gun. That’s what caused me to start

shooting. . . . He pulled a gun. I was in fear for my life.” Id. at 328 (¶44). On appeal, this

Court found that the defendant “clearly admitted that he did not start shooting out of heat of

passion provoked by being struck in the face. Rather, he claims he only shot out of fear for

his life after allegedly seeing [the victim’s] gun.” Id. We held, “evidence that the defendant

was in fear for his life only necessitated a self-defense instruction, not a heat-of-passion

instruction.” Id.

¶28. As in Allen, Jones conceded that Troy smacking his hand or attempting to hit him did

not provoke him to start firing his gun. He testified unequivocally that he shot Troy because

Troy had pulled a gun on him on two or three other occasions, and Jones was not going to

let that happen again. Similar to Allen, Jones admitted a multitude of times in his interview

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with police and in his testimony at trial that he only shot his gun out of “fear” for his life after

thinking that Troy’s putting his hand under his shirt implied he had a gun. “[E]vidence that

[Jones] was in fear for his life only necessitated a self-defense instruction, not a

heat-of-passion instruction.” Allen, 380 So. 3d at 328 (¶44).

¶29. The trial court meaningfully considered relevant precedent and refused his proposed

manslaughter instruction, finding no support that the shooting had resulted from “immediate

provocation” as required for heat-of-passion manslaughter. Instead, the trial court found that

an imperfect self-defense instruction he requested was appropriate under the facts.

Specifically, the trial judge held:

Well, I think the imperfect self-defense covers this situation but this is a heat
of passion manslaughter. The case law defines heat of passion as a state of
violent and uncontrollable rage engendered by a blow or certain other
provocation given which would reduce a homicide from a grade of murder to
that of manslaughter.

The trial judge continued,

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. I don’t think we have any of that here. What we have is
self defense or imperfect self-defense. So I don’t think the evidence would
suffice to warrant – would support instructing the jury on heat of passion.

¶30. As the trial court concluded, the evidence showed that Jones was not acting out of

violent or uncontrollable rage. Rather, he acted out of his own perceived notion of self-

preservation. He was deliberate in pulling out his gun and shooting it at Troy eleven

times—despite Troy attempting to run away. Under these undisputed facts, we cannot say

the trial court erred by refusing this instruction.

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¶31. Furthermore, as previously stated, the “[d]enial of a manslaughter instruction is proper

where the record is clear that the decedent was killed with malice[.]” DeJohnette, 385 So. 3d

at 1244 (¶45) (quoting Abeyta v. State, 137 So. 3d 305, 311 (¶12) (Miss. 2014)). “When a

deadly weapon is used, as here, malice is implied.” Turner v. State, 773 So. 2d 952, 954 (¶7)

(Miss. Ct. App. 2007). For a defendant “to overcome that implication, there must be some

evidence in the record from which the jury could determine that the act was not the result of

malice, but a result of heat of passion.” DeJohnette, 385 So. 3d at 1244 (¶45) (quoting

Turner, 773 So. 2d at 954 (¶7)). “Without evidence to the contrary, a heat-of-passion jury

instruction [is] unwarranted.” Id.

¶32. Because Jones used a deadly weapon to kill Troy, there is an implication of malice.

See id. Jones also shot Troy not once, but eleven times. We find no evidence in the record

showing Jones acted out of heat-of-passion rather than his stated purpose of self-defense. See

also Westbrook, 29 So. 3d at 836 (¶29) (holding no heat-of-passion when a defendant “arm[s]

himself prior to . . . and in preparation for an encounter” at some later point in time).

Therefore, we conclude that the trial court did not err by refusing to give Jones’s requested

lesser-included-offense instruction for heat-of-passion manslaughter.

II. The proposed instruction on the defense of necessity was
properly rejected.

¶33. Jones next argues that the trial court erred by refusing to give the defense-of-necessity

instruction he requested for the charge of possession of a weapon by a felon against him.

¶34. In contrast to our specific standard of review for refusing lesser-included-offense

instructions, “[i]t is well settled that jury instructions generally are within the discretion of

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the trial court, so the standard of review for the denial of jury instructions is abuse of

discretion.” Newell v. State, 49 So. 3d 66, 73 (¶20) (Miss. 2010). While “[a] defendant is

entitled to have jury instructions given which present his theory of the case[,] . . . this

entitlement is limited[.]” Stanfield v. State, 269 So. 3d 1188, 1190 (¶15) (Miss. 2019)

(quoting Thomas v. State, 249 So. 3d 331, 346 (¶49) (Miss. 2018)). The trial “court may

refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the

instructions, or is without foundation in the evidence.” Id. (quoting Thomas, 249 So. 3d at

346 (¶49)). “Instructions should be read as a whole, and if they fairly announce the law of

the case, there is no error.” LeCompte v. State, 373 So. 3d 796, 800 (¶11) (Miss. Ct. App.

2023).

¶35. There is no dispute that Jones was a felon at the time Troy was shot. Jones admitted

several times that he purchased a gun to protect himself, carried the gun around with him,

and used the gun to shoot Troy. As such, there is also no dispute that Jones was a felon in

possession of a firearm, which was undisputedly the specific gun used in the killing of Troy.

¶36. Nevertheless, we recognize that necessity is an affirmative defense that may be

applicable to the charge of felon in possession of a weapon. See Taylor v. State, 246 So. 3d

936, 937-38 (¶3) (Miss. Ct. App. 2018). “When a defendant attempts to prove an affirmative

defense, such as necessity, it is his burden to prove that such circumstances exist so as to

substantiate such a defense.” Smith v. State, 208 So. 3d 1, 3 (¶9) (Miss. Ct. App. 2016)

(quoting Stodghill v. State, 892 So. 2d 236, 239 (¶9) (Miss. 2005)).

¶37. “The defense of necessity is ‘available where the defendant reasonably acts out of

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fear of imminent danger of death or serious bodily harm to others.’” Davis v. State, 18 So.

3d 842, 849 (¶19) (Miss. 2009) (emphasis added) (other quotation marks omitted) (quoting

Stodghill, 892 So. 2d at 238 (¶8)). “To prove that he had an objective need to commit a crime

excusable by the defense of necessity, a defendant must prove three essential elements: (1)

the act charged was done to prevent a significant evil; (2) . . . no adequate alternative [was

there]; and (3) the harm caused was not disproportionate to the harm avoided.” Stodghill, 892

So. 2d at 238 (¶8) (citing McMillan v. City of Jackson, 701 So. 2d 1105, 1106-07 (Miss.

1997)).

¶38. We previously considered and found the defense of necessity applicable to a felon in

possession of a weapon charge in Taylor v. State, 246 So. 3d 936, 938-39 (¶7) (Miss. Ct.

App. 2018). In Taylor, a woman was standing in a motel room waiving a gun at the

defendant and threatening him. Id. at (¶4). The defendant grabbed at the gun, forced it out

of her hand, and took possession of it from her. Id. He then left the motel room carrying the

gun with him and boarded a nearby city bus. Id. He rode the bus directly to his mother’s

house about twenty minutes away and immediately handed the gun over to her. Id. This Court

found the trial court abused its discretion by denying the request for a defense-of-necessity

jury instruction because of the imminent threat to his personal safety and because his

possession was only temporary for the purpose of ensuring the gun was secured safely. Id.

at 939 (¶8).

¶39. But the facts in Taylor are distinguishable from what happened here. There was no

proof at trial that Jones obtained possession of the gun during the conflict with Troy or that

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Jones was not otherwise armed ahead of the conflict. Indeed, the evidence showed that Jones

did not anticipate or fear that he would encounter Troy on the specific night at issue. Rather,

Jones was not thinking about Troy when he armed himself with a firearm on the night in

question. Jones admitted, “I’m not expecting him to be there. . . . Troy was the last person

that I expected to see[.]”

¶40. The night of the shooting was weeks after Troy allegedly threatened Jones and pointed

a gun at him. While a notable period of time had lapsed since Troy allegedly pointed a

weapon at him, Jones continued to arm himself regularly for weeks after. Jones was “not

entitled to a necessity defense” because he “pursue[d] a continued course of criminal conduct

after circumstances justifying such conduct cease to exist.” Taylor, 246 So. 3d at 938-39 (¶7)

(quoting Myers v. State, 153 So. 3d 581, 587 (¶20) (Miss. 2014)); see also Davis v. State, 69

So. 3d 45, 48 (¶13) (Miss. Ct. App. 2011) (finding necessity not warranted when that the

defendant “could have called the police in response to the alleged threat, but he made no

attempt to do so”).

¶41. To the extent Jones conflates the principles of the defense of necessity with those of

self-defense, we find his argument without merit. “The defense of necessity is distinct from

raising self-defense.” Smith, 208 So. 3d at 3 (¶9) (quoting Anderson v. State, 185 So. 3d

1015, 1023 (¶32) (Miss. Ct. App. 2014)). “Possession of a firearm by a convicted felon is a

criminal act void of a third party to defend against.” Williams v. State, 953 So. 2d 260, 263

(¶8) (Miss. Ct. App. 2006) (emphasis added). In other words, “[Jones] was guilty of

possessing a firearm even if [Troy] had never approached him that night.” Id.

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¶42. Ultimately, we cannot say that the evidence shows Jones’s possession of the gun at

the time in question was out of “necessity” such that it would entitle him to a jury instruction

on the defense of necessity.

III. Pro Se Issues

¶43. As allowed by our Rules of Appellate Procedure, Jones subsequently filed his own pro

se supplemental brief. See MRAP 28(b). In his pro se brief, Jones argues his amended

indictment insufficiently charged him as a habitual offender, the State failed to prove his

status as a habitual offender beyond a reasonable doubt, and his Sixth Amendment right to

confront witnesses was violated at his habitual-offender sentencing hearing.

A. The indictment was sufficient to charge him as a
habitual offender.

¶44. Jones argues the amendment to his indictment charging him as a violent habitual

offender is invalid because the third prior conviction included lists a conviction date of

September “2001.” He claims he was actively serving out his sentence for another crime and

could not have been convicted on the date written. Jones argues that because his indictment

does not include the correct date for the third prior conviction, it is defective. He claims that

as a result of the defective indictment, his enhanced sentence is illegal and should be vacated.

¶45. “The purpose of an indictment is ‘to inform the defendant with some measure of

certainty as to the nature of the charges brought against him so that he may have a reasonable

opportunity to prepare an effective defense.’” Wilkins v. State, 57 So. 3d 19, 25-26 (¶20)

(Miss. Ct. App. 2010) (quoting Moses v. State, 795 So. 2d 569, 571 (¶13) (Miss. Ct. App.

2001)). The record on appeal shows Jones was afforded ample notice in the trial court of the

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prior convictions intended to be used as proof of his habitual offender status.

¶46. Also, Jones challenges the sufficiency of his indictment as to habitual status for the

first time on appeal. “When an accused fails to object to the habitual offender issue during

the sentencing phase, he is procedurally barred to do so for the first time on appeal.” Grayer

v. State, 120 So. 3d 964, 968-69 (¶14) (Miss. 2013). Nonetheless, “[r]ecognizing that his

argument is procedurally barred, [Jones] contends that he has a fundamental right to be free

of an illegal sentence and urges this Court to review his sentence for plain error.” Id. We

“may employ plain-error review if ‘a defendant’s substantive or fundamental rights are

affected.’” Conner v. State, 138 So. 3d 143, 150-51 (¶19) (Miss. 2014) (quoting Grayer, 120

So. 3d at 969 (¶15)).

¶47. In a prior case analyzing whether an indictment for habitual offender status was

flawed, our Supreme Court found “that an indictment’s failure to list any date for a prior

conviction was not fatal to the indictment.” Benson v. State, 551 So. 2d 188, 196 (Miss.

1989). The Benson Court reasoned:

[I]nformation pertaining to the date of the judgment was substantially set forth
in the indictment and that sufficient information was afforded the defendant
to inform him of the specific prior convictions upon which the State relied for
enhanced punishment to comply with due process.

Id. (internal quotation marks omitted) (quoting Wilkins, 57 So. 3d at 26 (¶20)).

¶48. We later considered a defendant’s claim that his indictment was defective for

enhancement purposes because the date for one of his prior felony convictions was listed as

June 30, 1997, but should have been May 23, 2003. Wilkins, 57 So. 3d at 26 (¶21). In accord

with Benson, we concluded that “the date of June 30, 1997, was merely [a] scrivener’s error

18
in drafting the indictment, which did not render the indictment defective.” Id.

¶49. The pen pack4 submitted to the trial court reflects three prior convictions for crimes

committed in Illinois that the State of Mississippi cited in the amended indictment. On June

29, 2001, Jones was convicted of felony robbery and sentenced to serve four years in

custody. On July 6, 2005, Jones was convicted of two charges of unlawful delivery of a

controlled substance and ordered to serve two concurrent eight-year sentences.

¶50. It is undisputed that Jones’s indictment incorrectly lists the date for the third prior

conviction from Illinois presented to support his habitual offender status. A mistake was

made while drafting the indictment document, but this typographical error in the indictment

does not warrant reversal. Despite the typo, Jones was given sufficient information in the

indictment to inform him of the specific prior conviction the State was relying on. Therefore,

pursuant to Benson and Wilkins, the scrivener’s error was harmless and not fatal to his

indictment.

B. The habitual offender status was proven beyond a
reasonable doubt.

¶51. As his second pro se issue, Jones claims that his habitual offender status was not

proven beyond a reasonable doubt. But Jones failed to object to the exhibits introduced at the

time of his sentencing hearing and, instead, raises this issue for the first time on appeal.

¶52. “To sentence a defendant as a habitual offender, ‘all that is required is that the accused

4
“‘Pen packs,’ or penitentiary packages, ‘are the records maintained on inmates
sentenced to the custody of the Department of Corrections.’” Edwards v. State, 75 So. 3d
73, 75 n.1 (Miss. Ct. App. 2011) (quoting Jasper v. State, 858 So. 2d 149, 152 (¶11) (Miss.
Ct. App. 2003)).

19
be properly indicted as an habitual offender, that the prosecution prove the prior offenses by

competent evidence, and that the defendant be given a reasonable opportunity to challenge

the prosecutor’s proof.’” Grayer, 120 So. 3d at 969 (¶18) (quoting Keyes v. State, 549 So.

2d 949, 951 (Miss. 1989)).

¶53. Part of the argument takes issue with the fact that the evidence for determining

whether to sentence him as a habitual offender was presented to the judge and not submitted

to the jury. However, we have repeatedly held that “[w]hen the defendant is indicted as a

habitual offender, ‘a jury is to decide the question of guilt and subsequently the circuit judge

is to serve as the finder of fact in determining whether the habitual offender part of the

indictment is established by the requisite degree of proof.” Conner, 138 So. 3d at 151 (¶20)

(emphasis added) (quoting Seely v. State, 451 So. 2d 213, 215 (Miss. 1984)). Therefore, the

decision was properly within the trial judge’s purview.

¶54. Jones also appears to argue that the pen pack was not sufficient evidence to prove his

habitual offender status and that more evidence was needed. “[P]en-pack records may

constitute competent evidence.” Id. Furthermore, “[c]ertified copies of the indictments and

sentencing orders in these prior convictions were introduced into evidence at the sentencing

hearing. . . . [T]hese records constitute sufficient evidence that he was a habitual offender

within this statute.” Taylor v. State, 122 So. 3d 707, 711 (¶11) (Miss. 2013) (quoting Moore

v. State, 631 So. 2d 805, 805-06 (Miss. 1994)).

¶55. Furthermore, Jones alleges that his prior conviction for robbery in Illinois was not a

crime of violence. In a previous case, this Court actually examined whether robbery is

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considered a crime of violence in Illinois. Avant v. State, 55 So. 3d 1115, 1118-19 (¶5) (Miss.

Ct. App. 2010). We specifically found that a robbery conviction was a crime of violence

under Illinois law. Id. at (¶6).5 Moreover, our caselaw has held that under Mississippi law,

“robbery is a crime of violence for purposes of habitual-offender sentencing.” Pryor v. State,

148 So. 3d 381, 386 (¶17) (Miss. Ct. App. 2014) (citing Magee v. State, 542 So. 2d 228, 236

(Miss. 1989)).6

¶56. Therefore, as a whole, Jones’s argument that his habitual offender status was not

sufficiently proven is without merit.

C. The right to confront witnesses does not apply at
sentencing hearings.

¶57. Jones’s last claim in his pro se brief argues his Sixth Amendment right to confront

5
In Avant, we found, “Under Illinois law, ‘a person commits robbery when he or she
takes property, except a motor vehicle covered by Section 18-3 or 18-4, from the person or
presence of another by the use of force or by threatening the imminent use of force.’ 720 Ill.
Comp. Stat. 5/18-1 (West 2002).” Avant, 55 So. 3d at 119 n.1.
6
The exhibits from Jones’s sentencing hearing were contained in multiple different
volumes and a supplement to the record, which challenged appellate review of this issue.
The review was further complicated because Jones’s prior convictions and sentencing orders
were from a foreign jurisdiction with its own precedent and statutes.
The failure to prove habitual offender status has resulted in reversal on multiple
occasions. See Williams v. State, 351 So. 3d 482, 487 (¶15) (Miss. Ct. App. 2022) (vacating
habitual offender conviction for failure to provide evidence “of a second prior conviction
and sentence”); Porter v. State, 379 So. 3d 942, 944 (¶10) (Miss. Ct. App. 2024) (finding
that “the trial court was without authority to declare [a petitioner in a Administrative
Remedy Program case] a habitual offender” when there was no proof of two predicate
offenses); Vince v. State, 844 So. 2d 510, 516 (¶17) (Miss. Ct. App. 2003) (reversing
habitual sentence when indictment failed to “include both the principal charge and a charge
of previous convictions” and to “allege with particularity the nature or description of the
offense constituting the previous convictions”). Due to the nature of the proof in these cases,
it is imperative that the record contain the relevant and detailed proof of prior convictions
in a manner that it can be reviewed on appeal.

21
witnesses against him was violated because he did not have the opportunity to cross-examine

the author of the certified records, Illinois Department of Corrections Supervisor Sheila

Brown. He contends that the certified record of the movement sheet from his three prior

convictions in Illinois introduced by the State was inconsistent with the indictment and that

he was deprived of the ability to question or challenge the validity of Brown’s conclusions.

¶58. “The Supreme Court of the United States has held that the Confrontation Clause does

not apply during the sentencing process.” Conner, 138 So. 3d at 152 (¶26). In particular,

“[t]he Mississippi Supreme Court has held that a defendant has a right to confront the

witnesses against him at a sentencing hearing before a jury.” Wells v. State, 328 So. 3d 124,

129 (¶8) (Miss. Ct. App. 2020). “[N]o such extension has been made to a sentencing before

a trial judge;” therefore, “a defendant has no right of confrontation at a non-jury sentencing.”

Id. (quoting Burgess v. State, 178 So. 3d 1266, 1280 (¶42) (Miss. 2015)).

¶59. Accordingly, the Sixth Amendment right to confront witnesses did not apply at

Jones’s sentencing hearing when the trial judge examined the question of his habitual

offender status.

CONCLUSION

¶60. For the reasons explained above, we affirm Jones’s convictions and sentences.

¶61. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR. McDONALD, J., CONCURS
IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE,
J., NOT PARTICIPATING.

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