James McClung a/k/a James Earl McClung Jr. v. State of Mississippi; ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-01053-COA
JAMES McCLUNG A/K/A JAMES EARL APPELLANT
McCLUNG JR.
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/15/2017
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MERRIDA COXWELL
CHARLES R. MULLINS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED-
12/03/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE BARNES, C.J., CARLTON, P.J., AND C. WILSON, J.
CARLTON, P.J., FOR THE COURT:
¶1. A shooting occurred on Highway 82 West outside of Itta Bena, Mississippi, late on
a Saturday evening in August 2015. A group of men in a light-colored Tahoe pulled up next
to a red Pontiac, and one or more of the men began shooting as both vehicles were traveling
west on Highway 82. Shortly after the shooting, Jacarius Keys, accompanied by counsel,
gave a statement to the chief investigator on the case. In his statement, Keys said that he was
driving the Tahoe, and he also implicated four other men, as follows: James Earl McClung
Jr., Sedrick Buchanan, Michael Holland, and Armand Jones. In July 2016, all five men,
Keys, McClung, Buchanan, Holland, and Jones, were co-indicted for the murder of one man
in the red Pontiac and for the attempted murders of the three other men in the Pontiac. Keys
was killed on December 28, 2016—a year and a half after the shooting and from when Keys
gave his statement, and approximately five months after the joint indictment was returned.
The remaining four co-indictees were subsequently tried together in the Leflore County
Circuit Court in May 2017. Keys’s videotaped statement was admitted into evidence and
played at the defendants’ trial.
¶2. This appeal concerns only McClung. After a four-day trial, the jury found McClung
guilty of three counts of the lesser-included offense of aggravated assault. He was sentenced
to serve three consecutive terms of twenty years in the custody of the Mississippi Department
of Corrections (MDOC). McClung appeals.1 Concluding that McClung’s confrontation
rights were violated in this case when Keys’s statement was admitted into evidence against
McClung’s objections, and that the trial court abused its discretion when it denied McClung’s
motion for severance, we reverse McClung’s convictions and sentences and remand for a
new trial.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶3. The record reflects that D’Alandis Love, Perez Love, Kelsey Jennings, and
Ken-Norris Stigler were traveling west on Highway 82 about 11:00 p.m. on August 15,
1
The other three defendants were also found guilty and appealed their convictions
and sentences. The appeals filed by McClung, Buchanan, and Jones were initially docketed
by the Mississippi Supreme Court Clerk under one docket number, 2017-KA-01053. This
Court subsequently entered an order assigning Buchanan’s and Jones’s appeals to a separate
docket number, 2017-KA-1082-COA. Holland’s appeal is pending in this Court under
docket number 2018-KA-00872-COA.
2
2015.2 They were in “Munchie” Brown’s red Pontiac and were going to a club in Itta Bena
called the Moroccan Lounge. As they were driving, a light-colored Tahoe sped past them,
spraying bullets as it went by. D’Alandis Love was killed, and Perez Love, Jennings, and
Stigler were seriously injured.
¶4. Shortly after the shooting, Keys, accompanied by his lawyer, went to the Leflore
County Sheriff’s Office in order to give a statement. He was interviewed by the chief
investigator on the case, Bill Staten, on September 2, 2015. When Investigator Staten
learned the video equipment had failed during that interview, he re-interviewed Keys, with
his lawyer present, on September 3.
¶5. In his interview, Keys said that he was driving the Tahoe, and he also provided
information that implicated McClung, as well as Buchanan, Jones, and Holland. After Keys
gave his incriminating statement to law enforcement, he went to Attorney Kevin Horan, who
represented Jones at trial, and told him that he had done so. To avoid repetition, the details
of Keys’s statement are addressed below.
¶6. In July 2016, the Grand Jury of Leflore County indicted Jones, Keys, Holland,
Buchanan, and McClung for “acting alone or in concert with each other or others” on one
count of deliberate-design murder of D’Alandis Love in violation of Mississippi Code
Annotated section 97-3-19(1)(a) (Rev. 2014); one count of attempted murder of Perez Love
in violation of Mississippi Code Annotated section 97-1-7 (Rev. 2014) and section
97-3-19(1)(a); one count of attempted murder of Jennings in violation of Mississippi Code
2
Kelsey Jennings and Ken-Norris Stigler were D’Alandis and Perez Love’s cousins.
For ease of reference we will sometimes collectively refer to all four men as the Loves.
3
Annotated sections 97-1-7 and 97-3-19(1)(a); and one count of attempted murder of Stigler
in violation of Mississippi Code Annotated sections 97-1-7 and 97-3-19(1)(a).
¶7. On December 28, 2016, a year and a half after the shooting and when Keys gave his
statement, and approximately five months after Jones, Keys, Holland, Buchanan, and
McClung were indicted, Keys was killed. The details of Keys’s murder will be addressed
below in the Court’s discussion of McClung’s Confrontation Clause assignment of error.
¶8. McClung, Holland, Buchanan, and Jones were tried together before a jury in Leflore
County Circuit Court. Each defendant was represented by his own lawyer.
¶9. Before trial all of the defendants moved to exclude Keys’s videotaped statement. The
trial court denied the defendants’ motions. The trial court’s ruling will be discussed below
when the Court addresses McClung’s Confrontation Clause assignment of error. After the
trial court denied defendants’ motions to exclude Keys’s videotaped statement, each
defendant moved pre-trial to sever his case from the others. The trial court also denied those
motions.
¶10. Trial began on May 16, 2017. The State’s witness, Matthew Brown, a deputy with
the Leflore County Sheriff’s Office, testified that he was on regular patrol on the night of
August 15, 2015, and spotted a fire in a field off of Highway 82. Deputy Brown pulled over
and approached the scene. He testified that he could see that one person was already out of
the vehicle, but others were still inside, with one person trying to climb out of the car through
the driver’s-side window. Deputy Brown testified that there were no bystanders or other
officers at the scene. Jennings was identified as the person outside the vehicle. Deputy
4
Brown helped Perez Love get out of the car through the window and then pulled two
unconscious men out of the backseat, Stigler and D’Alandis Love. D’Alandis Love was later
pronounced dead at the scene. Deputy Brown testified that he radioed for medical help and
the fire department. He also testified that once he realized that it was “not just a car wreck,”
he called in for the sheriff and the investigator.
¶11. Bill Staten, an investigator with the Leflore County Sheriff’s Office, testified that he
responded to the scene at approximately 12:20 a.m. He testified that after he parked his
vehicle, he walked to the scene and approached a smoldering vehicle, which he identified as
a red Pontiac resting nose up in a deep drainage ditch. Investigator Staten testified that he
looked at D’Alandis’s body and observed what he believed were gunshot wounds. The other
three victims had already been transported to the hospital. Investigator Staten also testified
that he examined the red Pontiac and found that the rear-passenger window had been shot
out and that there were bullet holes along that side of the vehicle. He took photographs and
collected evidence, including a number of 7.62 mm shell casings and one .40-caliber shell
casing. These items were recovered within the immediate area of where the vehicle had
traveled on (and left) the highway.
¶12. When Investigator Staten was re-called as a witness later in the trial, he testified that
he retrieved a pistol from the red Pontiac the next morning after they had the vehicle towed
to a secure location to let it cool off. Mark Steed, an investigator with the Mississippi Bureau
of Investigation (MBI) also testified for the State, explaining that he assisted with the
investigation and helped collect evidence. Investigator Steed also identified the handgun at
5
trial that Investigator Staten recovered from the red Pontiac.
¶13. Investigator Staten further testified that Jasmine Cage was at the scene and told one
of the deputies that she knew the people in the car and had witnessed the shooting. One of
the deputies placed Cage in a patrol car to isolate her while Investigator Staten finished
processing the scene. Investigator Staten testified that he then had her transported to the
sheriff’s office so that he could take her statement.
¶14. After Investigator Staten processed the scene, he testified that he had the Loves’
vehicle sent to a secure location to be processed as well. The State’s witness, Amber Conn,
a crime scene analyst with the MBI, was accepted as an expert in crime scene investigation.
She testified that she had examined the red Pontiac, and she opined that the car was shot from
the back toward the front. During her investigation of the victims’ vehicle, Conn recovered
another handgun. This weapon was recovered from the front-passenger floorboard that was
identified as a .40-caliber Smith & Wesson pistol. Conn testified that it was fully loaded
(one bullet was in the chamber) and that its safety was locked when she found it.
¶15. Lisa Funte, a medical examiner for the State, testified that D’Alandis Love, who had
been seated in the back of the red Pontiac on the driver’s side, died as a result of multiple
gunshot wounds. His manner of death was homicide.
¶16. The State’s witness, Starks Hathcock, was accepted as an expert in firearms and tool-
marks identification. Hathcock testified that he examined both .40-caliber pistols that were
recovered from the red Pontiac and compared them to the .40-caliber bullet that was
recovered from Perez Love’s head. He was able to confirm that this bullet was not fired by
6
either of the two guns recovered from the red Pontiac. Hathcock also testified that the 7.62
mm shell casings that were recovered from the highway could have been fired from an
AK-47 or SKS—some sort of semiautomatic assault rifle, which, he explained, is a weapon
designed for war. As addressed in more detail below, one of the surviving victims, Perez
Love, testified that he saw Jones in the Tahoe with a “baby assault rifle.” Hathcock testified,
however, that he could not compare the 7.62 mm shell casings that were recovered to a
specific weapon because Jones’s AK-47 was never recovered. Hathcock did testify that the
projectile jackets that were recovered from the red Pontiac bore similar characteristics to the
bullet that was recovered from D’Alandis Love’s right chest and the bullet that was
recovered from his right leg.
¶17. A number of lay witnesses were also called by the State. Bentravious “Munchie”
Brown testified that on the night of the incident he had loaned his red Pontiac Grand Prix to
Perez Love, Stigler, Jennings, and D’Alandis Love. He testified that Perez Love drove the
vehicle, and the group headed to a club at around 11:00 p.m. Brown testified that he did not
know which club they were going to.
¶18. Jasmine Cage, who was Perez Love’s girlfriend at the time of the incident, testified
that on the night of the shooting, she followed Perez and the others in Brown’s car to “make
sure Perez was not going to the club.” Cage testified that she saw the red Pontiac that Perez
and the others were in on Highway 82 ahead of her; after she saw the red Pontiac, she saw
a Tahoe or Yukon, and it passed her on her right side. Cage initially testified that she could
not see who was in the Tahoe/Yukon and did not know the color of the vehicle. When the
7
prosecutor reminded Cage about the statement she had given to Investigator Staten shortly
after the incident, she then testified that she had told Investigator Staten that she thought the
vehicle was gold and that she saw Keys, David Reedy, Jones, and Holland in the vehicle.
She testified that she thought Jones was in the front passenger seat and Holland was seated
in the back on the passenger side. Cage also testified that when she talked to Investigator
Staten after the incident, she told him that Reedy had been driving the Tahoe/Yukon and that
Keys was in the backseat on the driver’s side.
¶19. Cage testified that after the Yukon passed her, she saw “sparks like fire” a far distance
in front of her. Cage called Perez’s friend to ask him whether gunfire looks like fire at
nighttime, and he said it did. Cage testified that she then drove straight to the Moroccan
Lounge. She testified that when she did not see the red Pontiac at the club, she turned around
and headed back to Greenwood. On her way back, she testified that she saw the red Pontiac
on fire in the field. She stopped her car, got out, and approached the scene. She began
crying because she knew Perez was in the vehicle.
¶20. On cross-examination, Cage testified that she knew McClung and that she did not see
him in the vehicle that night.
¶21. Two of the surviving victims of the shooting, Stigler and Perez Love, testified that
Jones and Holland had been the ones who fired bullets at Perez Love, D’Alandis Love,
Stigler, and Jennings as they were traveling on Highway 82 in the red Pontiac. Jennings, the
other surviving victim, testified that he knew that a vehicle had pulled up beside them and
someone opened fire on them in the red Pontiac, but he could not identify either the vehicle
8
or anyone in it.
¶22. Stigler and Perez both testified that the shooters were traveling in a beige or gold
Tahoe-type vehicle. Perez testified that he saw defendant Jones in the Tahoe with a “baby
assault rifle.” He explained that it was sometimes called “a mini-Draco.” Stigler testified
that he saw Holland shooting a pistol from the vehicle, and Perez also said that he saw
Holland with a pistol through the window of the Tahoe as the Tahoe passed them. Stigler
also testified that he saw Jones shoot Perez in the top of the head. On cross-examination,
both Stigler and Perez testified that they did not see McClung in the vehicle that night.
¶23. Perez testified at trial that he could not positively identify anyone in the vehicle
besides Holland and Jones. He admitted, however, that he had given a statement after the
incident while he was hospitalized and identified other people, including Reedy and Keys,
in the vehicle.3 Perez testified that he identified the people in the Tahoe because he saw “all
of them” riding in the vehicle every day, and he thought they were in the vehicle that night.
Later in his testimony Perez said that after he thought about it more, he realized that he never
really saw anyone except Jones and Holland. On cross-examination, Perez also testified that
he thought Reedy was in the Tahoe that night because Reedy used to own the Tahoe.
¶24. As noted above, Keys gave a videotaped statement to Investigator Staten a few weeks
after the incident. He was indicted along with McClung, Buchanan, Jones, and Holland, but
3
Investigator Staten testified that he thought Perez had identified Buchanan, but
Investigator Staten was not sure. Defense counsel specifically questioned Perez about
whether he had identified Buchanan, but at trial Perez said he never saw Buchanan and,
other than Jones and Holland, he could not recall who he had previously identified.
9
Keys was not available at trial because he had been killed months earlier.4 Keys’s videotaped
statement was admitted into evidence as the State’s exhibit S-6 and was played for the jury.
It was not transcribed.
¶25. In his statement, Keys said that he was driving the gold Tahoe on the night of the
shooting. He said that Holland and Jones were on the passenger side, McClung was in the
rear seat of the driver’s side, and Buchanan was sitting in the third-row seat.5 According to
Keys, he, Holland, Jones, Buchanan, and McClung had been at Holland’s house on the night
of the shooting. Around 11:00 p.m., they all got in Keys’s car to go to the Moroccan Lounge
in Itta Bena.
¶26. Keys said that Jones brought his AK-47 with him, which Keys described as being
“short with a long magazine.” Keys said he did not know that Jones had it with him when
they got in his car. He said that he did not know Jones had it until “he first upped it”
(meaning until Jones began shooting it later than night). Keys also said at the end of his
statement that Jones had the AK-47 that night because “he always had it.” Although at one
point in his statement Keys said that he was unsure whether anyone else had a weapon, at the
end of his statement, Keys said that no one had a gun except Jones.
¶27. Keys said that there had not been any previous discussion among the group of gunning
down the Loves or of retaliation against them. However, when questioned specifically about
4
The jury was not told that Keys had been killed.
5
In comparison, Cage and Perez identified Reedy as the person driving the vehicle
while Keys was in the backseat. In his statement, Keys said that he was driving and Reedy
was not with them.
10
Jones, Keys said that Jones had said “days earlier” that he needed to get one of them (the
Loves) because they (the Loves) “had got some of their friends.”
¶28. Keys said that as they drove down Highway 82 toward Itta Bena, they approached a
car and Jones called out that it looked like the Loves were in that car.6 As they passed the
vehicle, according to Keys, Jones rolled down the window, leaned out the window, and
opened fire with his AK. Keys said that, as soon as Jones started shooting, Jones said, “Go,
go, go,” and Keys sped up to get away.
¶29. As they drove away, Keys said that Holland made a call to someone to get rid of the
car because of the shooting. Keys said that there was no discussion about this until after
Holland got off of the phone, and then Holland said that they needed to get rid of the car.
Keys said he drove to Moorhead, Mississippi, and a mechanic that Holland knew met them
in a grey Nissan. The mechanic took Keys’s Tahoe, and Keys, Jones, Holland, Buchanan,
and McClung drove off in the Nissan. Keys said that the mechanic was going to store his
Tahoe at his shop. At the time of trial, the Tahoe had not been recovered.
¶30. Keys said that after they switched cars, they went to a Best Western hotel in
Greenwood. When asked who got the room, Keys responded, “McClung.” Keys did not
state whether McClung had already gotten the room or got it when they arrived at the Best
Western. Keys said that when they got to the hotel, Jones brought his gun in with him.
6
Keys said that he did not recognize the car. Perez, however, said in his pretrial
statement that Keys was standing outside before Perez and the others had left for the club.
When questioned about that statement at trial, Perez testified that his statement was wrong.
He said that he meant to say that it was “Munchie” (Bentravius Brown), standing outside,
not Keys.
11
Later, Holland and Jones left together. According to Keys, Jones returned at around 3:00 or
4:00 a.m., and when he returned, he no longer had his gun. Keys said that he, Jones,
Buchanan, and McClung spent the night at the Best Western. The next morning, Jones
arranged for his own ride home, and Keys, McClung, and Buchanan got a ride together. Keys
was dropped off first. Keys said that he stayed with his mother for several days after the
shooting until he got a lawyer and turned himself in. While he was at his mother’s home in
Tennessee, Keys said that Jones contacted him from a phone Keys did not recognize and told
him that he was in Chicago. At the time Keys gave his statement on September 3, 2015, Keys
had not spoken with anyone else who had been involved in the incident. However, as noted
above, after Keys gave his statement to law enforcement, Keys approached Jones’s lawyer
and told the lawyer that he had given an incriminating statement.
¶31. Investigator Staten testified that he had independently verified that McClung rented
the room at the Best Western on the date of the shooting. On cross-examination, however,
Investigator Staten admitted that he had no evidence that Keys, McClung, Buchanan,
Holland, and Jones were at the Best Western together after the incident, other than Keys’s
statement. He testified that he “could not conclude or rule out where they re-entered that
room that night or that morning at all.” Investigator Staten admitted that he was only able to
obtain video from the Best Western of McClung when he registered for the room and when
he entered and left the room. No one else was on the video and there was no testimony about
what time McClung registered and entered and left the room.
¶32. Buchanan turned himself in on September 18, 2015, and Holland was arrested shortly
12
after the incident. Although David Reedy was a suspect who was arrested and jailed for
these crimes, the Grand Jury did not indict him.7
¶33. The State rested, and McClung, Jones, Buchanan, and Holland moved for directed
verdicts, which the trial court denied. No defendant testified or presented any other
testimony or evidence.
¶34. After considering the evidence and the instructions that were given, the jury found
each of the defendants guilty of various offenses. Relevant to this appeal, the jury acquitted
McClung on Count I (deliberate-design murder of D’Alandis Love) and found McClung
guilty of aggravated assault with respect to Perez Love, Jennings, and Stigler. The trial court
sentenced McClung to serve three consecutive terms of twenty years for each aggravated-
assault conviction and ordered McClung to pay court costs and fees. McClung filed a motion
for judgment notwithstanding the verdict and for a new trial, which the trial court denied.
McClung appealed.
DISCUSSION
I. Admissibility of Keys’s Statement Against McClung
A. The Confrontation Clause and Exceptions to the Rule
Against Hearsay.
¶35. McClung asserts that the trial court erred in allowing Keys’s statement into evidence
against him because it violated McClung’s right to confront the witness as guaranteed by the
7
The record reflects that surveillance footage was recovered during the investigation
that appeared to show Reedy at a Batesville gas station forty minutes prior to the incident.
13
Sixth Amendment of the United States Constitution8 and Article 3, Section 26 of the
Mississippi Constitution,9 which both provide a defendant the right to confront a witness
against him. McClung also asserted that the statement was inadmissible hearsay.10 In
general, the standard of review “regarding admission or exclusion of evidence is abuse of
discretion.” Jenkins v. State, 102 So. 3d 1063, 1065 (¶7) (Miss. 2012). However, we review
a Confrontation Clause objection de novo. Smith v. State, 986 So. 2d 290, 296 (¶18) (Miss.
2008). For the reasons addressed below, we find that the trial court erred in allowing Keys’s
statement against McClung to be admitted at trial, and we reverse and remand McClung’s
convictions and sentences for a new trial on this basis.
¶36. Before trial, McClung and the other defendants moved to exclude Keys’s statement
given to Investigator Staten based upon Sixth Amendment and hearsay grounds. The State
argued in response that Keys’s statement was admissible against each defendant under Rule
804(b)(3) (the statement-against-interest exception) and the exception under Rule 804(b)(5)
(the catch-all exception) of the Mississippi Rules of Evidence. The State also argued that
Keys’s statement was admissible under the forfeiture-by-wrongdoing theory as embodied in
Rule 804(b)(6) and caselaw recognizing a similar exception under the Confrontation
8
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” U.S. Const. amend. VI.
9
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” Miss. Const. art. 3, § 26.
10
Hearsay, as defined in Mississippi Rule of Evidence 801, is inadmissible unless the
law provides otherwise, including the exceptions in Mississippi Rule of Evidence Rule 804.
See M.R.E. 802.
14
Clause.11
¶37. At the admissibility hearing, the defendants presented one witness, Attorney Kevin
Horan, who represented Jones at trial. He testified that Keys had come to his office, told him
he was out on bond, and that Keys had told him “the only reason he gave a statement was
because he got a lower bond.” Horan testified that at that point, he stopped Keys
immediately and told him if was going to “change his story” then he needed to do it through
counsel. Horan testified that Keys did not “tell me what he said or anything.” According to
Horan, Keys just “made some other comments and then he left.” Horan did not testify
whether he told anyone else about Keys’s visit to his office. However, the record reflects
that Keys’s statement was provided to all the co-defendants through discovery at the
beginning of the case.
¶38. The State presented two witnesses. The first witness the State called was Sergeant
Jeri Bankston, a detective with the Greenwood Police Department, who investigated the Keys
shooting that occurred on December 28, 2016. She obtained the video-surveillance footage
from the Chevron Station near where the shooting occurred. The video-camera footage was
played at the hearing. The footage showed Keys running across the Chevron parking lot with
Holland running behind him. Buchanan and other men, including Anthony Flowers,
Ladarius Lemock, and Danarius Jackson, were in the parking lot at the same time. The
footage also showed Holland with a gun in his hand. Sergeant Bankston testified that she
developed five suspects in the Keys case: Holland, Buchanan, Lemock, Jackson, and
11
See Davis v. Washington, 547 U.S. 813, 833 (2006); Crawford v. Washington, 541
U.S. 36, 62 (2004).
15
Flowers.
¶39. On cross-examination, Sergeant Bankston admitted that she had no evidence of
McClung being involved in Keys’s murder and that he was not at the scene of the parking
lot. She also confirmed that Jones was in jail at the time of Keys’s death. Sergeant Bankston
testified that Buchanan was arrested on December 29, 2016, for Keys’s shooting and that
Holland received a text message from Buchanan when Buchanan was in jail. The caller-ID
showed the text message was from “A.J.,” whom she believed was Armand Jones. She said
that the text message said something to the effect of “Hey, this is Sed.” She did not recall
what was in the rest of the text message. Sergeant Bankston confirmed that Jones and
Buchanan were in jail at the same time when the text message was sent.
¶40. The State’s second witness was Investigator Staten, the chief investigator in the Love
shooting case. He testified that shortly after the August 15, 2015 shooting, Keys, with his
lawyer, came to the Leflore County Sheriff’s Office and said that he wanted to give a
statement. Investigator Staten was called in to take the statement. He testified that he
initially interviewed Keys, with his lawyer present, on September 2, 2015. Due to equipment
failure, however, Investigator Staten had to re-interview Keys on September 3, 2015. Keys’s
lawyer was also present at that interview. The interview was videotaped but not transcribed.
The videotaped interview was played for the trial court at the admissibility hearing.
¶41. During cross-examination, Investigator Staten acknowledged that there were
inconsistencies in Keys’s statement as compared to statements given by other witnesses
regarding the people in the Tahoe and where they were sitting.
16
¶42. After argument of counsel, the trial court denied the defendants’ motions to exclude
Keys’s statement and expressed that it would enter a written order stating the reasons
supporting its decision to allow the videotaped interview to be admitted into evidence at trial.
In its written order, the trial court concluded that Keys’s statement was admissible under
three exceptions to the hearsay rule: Rule 804(b)(3) (statement against a person’s interest);
Rule 804(b)(5) (the catch-all hearsay exception); and Rule 804(b)(6) (the forfeiture-by-
wrongdoing exception).12 We address the trial court’s rulings below.
¶43. Relevant evidence, as defined in Rule 401, is generally admissible subject to certain
laws regarding exclusions and exceptions. See M.R.E. 402. Rules regarding hearsay address
concerns with admitting evidence that, albeit relevant, is not sufficiently reliable. See M.R.E.
801 & advisory committee note. The Mississippi Supreme Court has recognized that
“[n]ontestimonial hearsay is subject to evidentiary rules concerning reliability rather than
being subject to scrutiny under the Confrontation Clause. However, testimonial hearsay must
be filtered by the Confrontation Clause.” Smith, 986 So. 2d at 296-97 (¶20) (emphasis
added) (citing Crawford, 541 U.S. at 36, 53)). Statements given in the course of a police
interrogation are testimonial “when the circumstances objectively indicate that . . . the
primary purpose of the interrogation is to establish or prove past events potentially relevant
12
The trial court primarily relied upon United States v. Thompson, 286 F.3d 950 (7th
Cir. 2002), in determining that the forfeiture-by-wrongdoing exception applied. The court
summarized Thompson as follows: “According to the Seventh Circuit, the
waiver-by-misconduct of the right to confront witnesses by one conspirator, resulting from
misconduct by that conspirator which causes the witness’s unavailability, may be imputed
to another conspirator if the misconduct was within the scope and in furtherance of the
conspiracy, and was reasonably foreseeable to him.” (Citing Thompson, 286 F.3d at 965).
17
to later criminal prosecution.” Id. at 297 (¶21) (quoting Davis, 547 U.S. at 822). Under this
test, we conclude that Keys’s statement was testimonial in that Investigator Staten
interrogated Keys to establish events concerning the shooting—events potentially relevant
to future criminal prosecution. Accordingly, even if Keys’s statement meets the evidentiary
reliability rules set forth in Rule 804(b)(3) or Rule 804(b)(5), these rules do not circumvent
a defendant’s rights under the Confrontation Clause. Smith, 986 So. 2d at 298 (¶26)
(recognizing that “Crawford holds that when dealing with testimonial evidence, a finding of
reliability does not create an exception to the Confrontation Clause”) (citing Crawford, 541
U.S. at 61)); see Sanders v. State, 228 So. 3d 888, 891-92 (¶¶12-16) (Miss. Ct. App. 2017)
(finding that the circuit court erred when it admitted witness’s testimonial statement in
violation of the Confrontation Clause of the Sixth Amendment; but finding error harmless
under the circumstances of that case).
¶44. A party, however, “who obtains the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation.” Davis, 547 U.S. at 833; see also Crawford, 541 U.S.
at 62 (“[T]he rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on
essentially equitable grounds . . . .”). Likewise, under Rule 804(b)(6), a party forfeits his
rights to object to a prior testimonial statement on hearsay grounds if the party “wrongfully
caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness,
and did so intending that result.” M.R.E. 804(b)(6) & advisory committee note.
¶45. The trial court in this case found that Keys’s statement was admissible against
McClung under the forfeiture-by-wrongdoing doctrine as embodied in Rule 804(b)(6). Like
18
the trial court, we find no Mississippi law interpreting Mississippi Rule 804(b)(6), and thus
we electively look for guidance from federal cases analyzing the identical language in Rule
804(b)(6) of the Federal Rules of Evidence and related Confrontation Clause principles.13
¶46. As recognized by the United States Supreme Court, federal Rule 804(b)(6) codifies
the equitable doctrine of forfeiture by wrongdoing, Davis, 547 U.S. at 833, “which applies
only when the defendant engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness.” Giles v. California, 554 U.S. 353,
367 (2008) (internal quotation mark omitted). In order for Keys’s statement to be admissible
against McClung, the State, as the party offering the evidence, was required to prove the facts
meeting these requirements as to McClung by a preponderance of the evidence. United
States v. Gurrola, 898 F.3d 524, 534 (5th Cir. 2018).
¶47. As the Supreme Court observed in Giles, “[e]very commentator we are aware of has
concluded the requirement of intent means that the exception applies only if the defendant
has in mind the particular purpose of making the witness unavailable.” Giles, 554 U.S. at
367 (internal quotation mark omitted). The Fifth Circuit recognized this principle in
Gurrola, as follows: “In order for the declarant’s statements to be admissible, the wrongdoer
must ‘have in mind the particular purpose of making the witness unavailable.’” Gurrola, 898
F.3d at 534 (quoting Giles, 554 U.S. at 367). Indeed, in discussing the common-law
forfeiture-by-wrongdoing doctrine, the Giles Court recognized that “[t]he terms used to
13
“In interpreting the Mississippi Rules of Evidence, it is appropriate to look to
federal law interpreting the Federal Rules of Evidence for guidance.” Portis v. State, 245
So. 3d 457, 470 (¶31) (Miss. 2018).
19
define the scope of the forfeiture rule suggest that the exception applied only when the
defendant engaged in conduct designed to prevent the witness from testifying.” Giles, 554
U.S. at 359 (emphasis omitted).
¶48. Based upon our review of the record from the admissibility hearing, we find that the
State put forth no evidence at the hearing that showed that McClung “ha[d] in mind the
particular purpose of making [Keys] unavailable.” Id. at 367. Sergeant Bankston, who was
the investigator on the Keys murder case, testified at the hearing that she had no evidence of
McClung being involved in Keys’s murder. He was not developed as a suspect.
¶49. Nor do we find any evidence in the record that McClung “acquiesced” in Keys’s
murder. In United States v. Marchesano, 67 M.J. 535, 543-45 (A. Ct. Crim. App. 2008), the
court examined the meaning of “acquiesced” in the forfeiture-by-wrongdoing context.
Although the court acknowledged that “tacit assent” or “tacit acceptance” could constitute
“acquiescence,” it found no evidence that the defendant tacitly or otherwise procured his
daughter’s absence as a witness at his trial. Id. at 544-45. The court concluded that the
military judge erred in determining that the accused “acquiesced” in his wife’s refusal to
honor a subpoena for their daughter’s court appearance where the accused simply left the
decision whether to produce their daughter for trial with his wife and made no attempt to
influence her decision. Id. at 545. We likewise find in this case there is no evidence that
McClung tacitly assented to or accepted any action on anyone’s part to prevent Keys from
testifying.
B. The Conspiratorial Responsibility Theory
20
¶50. The State asserts that McClung is liable for “acquiescing” in procuring Keys’s
unavailability under the conspiratorial responsibility theory announced in the 2000 decision
of United States v. Cherry, 217 F.3d 811 (10th Cir. 2000).14 For the reasons addressed
below, we find no merit in this assertion.
¶51. Cherry involved five defendants charged with involvement in a drug conspiracy. Id.
at 813. Much of the State’s evidence was from a cooperating witness, Lurks. Id. Prior to
trial, one of the alleged drug co-conspirators, Price, murdered Lurks. Id. The trial court
granted the other co-conspirators’ motion to suppress Lurks’s statement against them, finding
that there was insufficient evidence as to one defendant that she “procured Lurks’s absence”;
and finding as to the other three defendants that there was no evidence that these defendants
“had actual knowledge of, agreed to[,] or participated in [Lurks’s] murder.” Id. at 814.
¶52. In relevant part, the Tenth Circuit reversed and remanded to the district court for
findings on the following issue: “[W]as . . . Price’s murder of Lurks within the scope, in
furtherance, and reasonably foreseeable as a necessary or natural consequence, of an ongoing
drug distribution conspiracy involving the defendants?” Id. at 822. Elaborating on this issue,
the Tenth Circuit held:
[T]oday we hold that participation in an ongoing drug conspiracy may
constitute a waiver of constitutional confrontation rights if the following
additional circumstances are present: the wrongdoing leading to the
unavailability of the witness was in furtherance of and within the scope of the
14
In particular, the State asserts there was sufficient evidence presented at the
admissibility hearing to allow the trial court to infer that Holland, with Buchanan’s
assistance, killed Keys for the purpose of preventing him from testifying at trial, e.g., supra
¶38 (discussing Holland and Buchanan), and that under the conspiratorial responsibility
theory McClung “acquiesced” in procuring Keys’s unavailability.
21
drug conspiracy, and such wrongdoing was reasonably foreseeable as a
“necessary or natural” consequence of the conspiracy.
Id. at 821 (emphasis omitted). The Tenth Circuit also clarified that “the scope of the
conspiracy is not necessarily limited to a primary goal—such as bank robbery—but can also
include secondary goals relevant to the evasion of apprehension and prosecution for that
goal—such as escape, or, by analogy, obstruction of justice.” Id.
¶53. In sum, with respect to the drug conspiracy at issue in that case, the Cherry court held
that “[a] defendant may be deemed to have waived his or her Confrontation Clause rights
(and, a fortiori, hearsay objections) if a preponderance of the evidence establishes [that] . . .
the wrongful procurement was in furtherance, within the scope, and reasonably foreseeable
as a necessary or natural consequence of an ongoing conspiracy . . . .” Id. at 820.
¶54. Two years later in Thompson, the Seventh Circuit Court of Appeals addressed the
Cherry conspiratorial responsibility test and explicitly recognized the importance of the
“reasonably foreseeable” factor. Thompson, 286 F.3d at 964-65. The court explained, “By
limiting coconspirator waiver-by-misconduct to those acts that were reasonably foreseeable
to each individual defendant, the rule captures only those conspirators that actually
acquiesced either explicitly or implicitly to the misconduct.” Id. at 965.
¶55. Finally, in 2008, the Supreme Court decided Giles, as we have discussed above, and
made clear that in order to apply the forfeiture-by-wrongdoing doctrine there must be a
showing of intent to prevent the witness from testifying. Giles, 554 U.S. at 361-62. In
United States v. Dinkins, 691 F.3d 358, 385-86 (4th Cir. 2012), the Fourth Circuit Court of
Appeals addressed the Cherry conspiratorial responsibility theory in the light of the Supreme
22
Court’s “intent” requirement under Giles. In this regard, the Fourth Circuit held that in
applying the Cherry test, which requires a determination that the wrongful procurement of
a witness must be “in furtherance, within the scope, and reasonably foreseeable as a
necessary or natural consequence of an ongoing conspiracy,” Cherry, 217 F.3d at 820, the
court’s decision must be supported by evidence that the defendant “‘engaged in conduct
designed to prevent the witness from testifying.’” Dinkins, 691 F.3d at 385 (emphasis in
original) (quoting Giles, 554 U.S. at 359)). As noted above, no Mississippi appellate court
has addressed this issue.
¶56. Applying these cases, and comparing McClung’s case with the facts in Dinkins, we
find that the State did not demonstrate that McClung engaged in conduct “designed to
prevent [Keys] from testifying” or that Keys’s murder was reasonably foreseeable to
McClung. Accordingly, we find that the trial court erred in admitting Keys’s statement
against McClung at trial.
¶57. In Dinkins, 691 F.3d at 385, the record reflected that Dinkins was a member of a
narcotics trafficking organization called “Special.” Dinkins asserted that statements by
Dowery, a government informant killed before Dinkins’s trial, were wrongfully used against
him at trial because Dinkins did not participate in Dowery’s murder—Dinkins was in jail at
the time. Id. at 383-84.
¶58. The court found no merit in Dinkins’s argument, pointing out that the record showed
that Dowery was a known government informant and that Dinkins and a co-conspirator,
West, had attempted to kill Dowery in October 2004, about a year before Dowery was
23
actually murdered. Id. at 385-86. The Fourth Circuit also observed that the record showed
that when Dinkins learned that Dowery had not died of his wounds in October 2004, Dinkins
said that he and West needed “to go to the hospital to finish him off.” Id. at 385. Under these
circumstances, the court held that the trial court properly admitted Dowery’s statements
against Dinkins because “the evidence showed that the murder of Dowery in November 2006
was in furtherance, within the scope, and reasonably foreseeable as a natural consequence
of an ongoing conspiracy of which Dinkins was a member.” Id.
¶59. There is no such incriminating evidence in McClung’s case. To the contrary, we find
that the State did not present sufficient evidence that McClung conspired with any other
defendant to kill Keys or that Keys’s death was foreseeable to McClung. To the extent that
McClung was a part of the shooting incident, the State made no showing that any conspiracy
to do so, and involving McClung, continued as far as McClung’s involvement or
acquiescence in killing Keys. See Thompson, 286 F.3d at 965 (“By limiting coconspirator
waiver-by-misconduct to those acts that were reasonably foreseeable to each individual
defendant, the [conspiratorial responsibility] rule captures only those conspirators that
actually acquiesced either explicitly or implicitly to the misconduct.”). Sergeant Bankston
testified that McClung was not present the night Keys was killed, nor was McClung
developed as a suspect in the Keys murder. Indeed, Keys’s murder occurred one and a half
years after the shooting and from the time when Keys gave his statement. There also is no
evidence in the record of any communication between McClung and Holland or McClung
and Buchanan (both suspects in Keys’s killing)—either before or after Keys was shot.
24
¶60. Based upon our de novo review of the record and the applicable law, we conclude that
the trial court erred in admitting Keys’s statement against McClung based upon the
forfeiture-by-wrongdoing doctrine. We reverse McClung’s convictions and sentences and
remand for a new trial for this reason and the additional reason addressed in the following
section.
II. Motion for Severance
¶61. McClung also asserts that the trial court erred in failing to sever his trial from the
other defendants. In the light of our finding that Keys’s statement should not have been
admitted against McClung, we agree. Regarding severance of trials, Uniform County and
Circuit Court Rule 9.03, which applied when McClung was tried in May 2017,15 provides as
follows:
The granting or refusing of severance of defendants in cases not involving the
death penalty shall be in the discretion of the trial judge. The court may, on
motion of the state or defendant, grant a severance of offenses whenever:
1. If before trial, it is deemed appropriate to promote a fair
determination of the defendant’s guilt or innocence of
each offense . . . .
We therefore review the trial court’s refusal to grant a motion for severance for an abuse of
discretion. King v. State, 857 So. 2d 702, 716 (¶19) (Miss. 2003). In reviewing the denial
of a motion for severance, we consider two criteria: “(1) whether the testimony of one
co-defendant tends to exculpate that defendant at the expense of the other defendant and (2)
whether the balance of the evidence introduced at trial tends to go more to the guilt of one
15
The Mississippi Rules of Criminal Procedure did not become effective until July
1, 2017.
25
defendant rather than the other.” Hayes v. State, 168 So. 3d 1065, 1074 (¶34) (Miss. Ct.
App. 2013) (internal quotation marks omitted) (quoting Hawkins v State, 538 So. 2d 1204,
1207 (Miss. 1989)). McClung must also show that he was prejudiced by the trial court’s
refusal to grant his motion for severance in order for this Court to reverse and remand his
case for a new trial. See id.
¶62. In this case, the balance of the evidence introduced at trial weighed far heavier to the
guilt of other co-defendants than McClung—indeed, as addressed above, Keys’s statement
should not have been admitted against McClung at all, absent a showing that McClung acted
or acquiesced in Keys’s killing or that it was foreseeable to McClung. Upon review of the
record and applying controlling law, we conclude that McClung was plainly prejudiced by
the trial court’s denial of his motion for severance. Accordingly, we find that the trial court
abused its discretion in denying McClung’s motion for severance, and we reverse McClung’s
convictions and sentences and remand for a new trial for this additional reason.
¶63. Because we find that the trial court erred in admitting Keys’s statement against
McClung and in denying McClung’s motion for severance, we reverse and remand on these
grounds.
III. Sufficiency of the Evidence
¶64. McClung also asserts that his aggravated-assault convictions should be reversed and
rendered because the State presented insufficient evidence supporting his convictions.16 We
16
We address McClung’s sufficiency-of-the-evidence argument in the light of Newell
v. State, 175 So. 3d 1260 (Miss. 2015), a case in which the Mississippi Supreme Court
explained that a challenge to the sufficiency of the evidence should be addressed on appeal
even when the appellate court determines that reversal and remand is warranted based upon
26
may consider the erroneously admitted evidence (i.e., Keys’s statement) in addressing
McClung’s sufficiency-of-the-evidence argument. See Lockhart v. Nelson, 488 U.S. 33, 40
(1988); accord Hilliard v. State, 950 So. 2d 224, 230 (¶28) (Miss. Ct. App. 2007). Taking
into account Keys’s statement and the other evidence against McClung presented at trial, we
find that the State presented sufficient evidence to sustain McClung’s aggravated-assault
convictions. We find, therefore, that the proper procedure is to reverse and remand under
these circumstances.17 Lockhart, 488 U.S. at 40 (holding that the Double Jeopardy Clause
an evidentiary error in the trial court because there is potential to render a judgment of
acquittal. Id. at 1267 (¶5).
17
Judge McDonald asserts in her dissent that without Keys’s statement, the remaining
evidence against McClung is insufficient to support his convictions of aggravated assault,
and, therefore, his case should be reversed and rendered, rather than remanded. Contrary
to this assertion, even if there arguably remains no evidence, or insufficient evidence, to
support McClung’s convictions, the proper procedure is to reverse and remand in this case
where a trial evidentiary error is involved, as the Mississippi Supreme Court first explained
in Witherspoon v. State, (ex rel. West), 138 Miss. 310, 103 So. 134, 139 (1925), as follows:
The record simply presents a case wherein a fact necessary to support the
judgment rendered was proven or made to appear by incompetent evidence,
and in such a case the Supreme Court on appeal thereto should not decide the
case as if no evidence of the fact had been introduced, but should remand the
case for a new trial so that the fact may be made to appear by competent
evidence. This, in so far as we are aware, is the universal rule.
(emphasis added); accord Campbell v. State, 798 So. 2d 524, 530 (¶22) (Miss. 2001)
(reversing and remanding defendant’s conviction when defendant’s statement to the
authorities and evidence of blood on his clothes were found inadmissible and remaining
admissible evidence offered at trial was insufficient to sustain the conviction); Gavin v.
State, 785 So. 2d 1088, 1095 (¶28) (Miss. Ct. App. 2001) (recognizing that “[e]ven when
the only evidence on an issue has been declared inadmissible, the proper procedure is to
remand”). See Lockhart, 488 U.S. at 40; United States v. Sarmiento-Perez, 667 F.2d 1239,
1240 (5th Cir.1982) (remanding where a co-conspirator’s confession was improperly
admitted against defendant; explaining that remand was proper “[b]ecause we cannot know
what evidence might have been offered if the evidence improperly admitted had been
27
allows re-trial when a reviewing court determines that a conviction must be reversed because
evidence was erroneously admitted against defendant, even when, without the inadmissible
evidence, there was insufficient evidence to support a conviction); Hilliard, 950 So. 2d at
230 (¶28) (“We find that, discounting the inadmissible evidence, there was quite meager
evidence to sustain [defendant’s] conviction. However, all the evidence admitted at trial was
sufficient to sustain [it]. . . . Where we, on review, find the circumstances as we do, the
proper result is to reverse and remand.”).
¶65. The record reflects that the State showed that on the night of the shooting McClung
was at Holland’s house with Holland, Jones, Keys, and Buchanan, and that the Loves had
recently “gotten” one of their friends. According to Keys’s statement, Jones had stated a few
days earlier that he needed to get one of the Loves because of this incident. The group left
Holland’s house in Keys’s Tahoe to go to a club. Keys said in his statement that Jones was
armed, but that he (Keys) did not know it at the time. However, Keys also said in his
statement that it was not unusual for Jones to have his gun because Jones “always” carried
his short AK-47. At trial, two of the surviving victims testified that Holland was also armed
that evening.
¶66. The proof established at trial that as the group was traveling on Highway 82, they
encountered the Loves. In his statement, Keys said that Jones spotted the Loves in the red
Pontiac, and Jones called out that it looked like the Loves in that car. According to Keys,
Jones then opened fire on the Love vehicle as they passed by. Testimony from two of the
originally excluded by the trial judge”).
28
surviving victims at trial also elaborated on the circumstances surrounding the shooting.
Stigler and Perez Love both testified that the Tahoe pulled up beside them (the Loves in the
red Pontiac) and that both Jones and Holland began shooting. Stigler also testified that
“[t]hey bumped us into the ditch. . . . They hit the back end of our car . . . so once they
bumped the car we couldn’t do nothing but go over in the field and roll.”
¶67. The evidence at trial also showed that after the shooting, McClung made no attempt
to leave the group. Holland made arrangements to swap the Tahoe out for another vehicle,
he told the group that he had done so, and the group traveled to Moorhead, Mississippi where
they swapped vehicles. The group then took backroads to a Best Western hotel in
Greenwood, and Keys, Buchanan, Jones, and McClung spent the night together in a room
that the evidence showed was rented by McClung.
¶68. Under Mississippi law, “a person who acts in ‘confederation’ with others to violate
a law is liable as a principal under either the theory of conspiracy or the theory of aiding and
abetting.” Adams v. State, 726 So. 2d 1275, 1279 (¶11) (Miss. Ct. App. 1998) (quoting
Shedd v. State, 228 Miss. 381, 386, 87 So. 2d 898, 899 (1956)). As such, McClung need not
be identified as a shooter to be found liable. Admittedly, discounting Keys’s statement,
“there was quite meager evidence” sustaining McClung’s convictions. Hilliard, 950 So. 2d
at 230 (¶28). As we found in Hilliard, however, we likewise find in this case that,
nevertheless, “all the evidence admitted at trial was sufficient to sustain [McClung’s]
convictions[,] . . . [and, therefore,] “the proper result is to reverse and remand . . . based upon
the improper admission of Keys’s statement against McClung at trial, as addressed above.
29
Id.
¶69. REVERSED AND REMANDED.
BARNES, C.J., GREENLEE, TINDELL, LAWRENCE AND C. WILSON, JJ.,
CONCUR. WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART
WITHOUT SEPARATE WRITTEN OPINION. J. WILSON, P.J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED
BY McDONALD, J. McDONALD, J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, J.
McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION, JOINED BY WESTBROOKS, J.
J. WILSON, P.J., CONCURRING IN PART AND DISSENTING IN PART:
¶70. I agree that the admission of Keys’s statement violated McClung’s rights under the
Confrontation Clause. However, rather than remanding for a new trial, I would render a
judgment of acquittal in favor of McClung on the remaining counts because the evidence
presented was insufficient to convict him of aggravated assault.
¶71. When we address a challenge to the sufficiency of the evidence, all credible evidence
of guilt must be taken as true, and the State is entitled to all reasonable inferences that may
be drawn therefrom. Haynes v. State, 250 So. 3d 1241, 1244 (¶6) (Miss. 2018). We consider
the evidence in the light most favorable to the State, although we also keep in mind that the
State must prove the defendant’s guilt beyond a reasonable doubt. Id. This burden must be
satisfied with evidence, not speculation or conjecture. Edwards v. State, 469 So. 2d 68, 69-
70 (Miss. 1985); Sisk v. State, 294 So. 2d 472, 475 (Miss. 1974). We will reverse and render
if the facts and inferences point in favor of the defendant with such force that reasonable
jurors could not find him guilty beyond a reasonable doubt. Haynes, 250 So. 3d at 1244 (¶6).
But we will affirm the conviction if “any rational trier of fact could have found the essential
30
elements of the crime beyond a reasonable doubt.” Id. (quoting Shelton v. State, 214 So. 3d
250, 256 (¶29) (Miss. 2017)).
¶72. There is no evidence that McClung fired a gun into the red Pontiac, but the State
argues that he aided and abetted Jones and Holland. “One who aids and abets another in the
commission of a crime is guilty as a principal.” Hughes v. State, 983 So. 2d 270, 276 (¶14)
(Miss. 2008). “To aid and abet the commission of a felony, one must do something that will
incite, encourage, or assist the actual perpetrator in the commission of the crime or
participate in the design of the felony.” Id. (quotation marks, ellipsis, and brackets omitted).
We do “not recognize guilt by association.” Id. “Mere presence, even with the intent of
assisting in the crime, is insufficient unless the intention to assist was in some way
communicated to the principal.” Id. (quotation marks and brackets omitted). Likewise, mere
presence “at the commission of a crime without taking any steps to prevent it does not alone
indicate such participation or combination in the wrong done as to show criminal liability.”
Id. This is true even if the defendant approves of the criminal act. Id.
¶73. None of the eyewitnesses identified McClung as a passenger in the Tahoe. The only
evidence against him was Keys’s statement.18 However, during his approximately forty-
three-minute recorded statement, Keys said little about McClung and nothing to implicate
him as an aider and abettor in the shooting. Keys stated only that McClung was in the back
seat of the Tahoe when the shooting occurred and that McClung got a room for the group at
18
The U.S. Supreme Court has held that a reviewing court may consider erroneously
admitted evidence when ruling on a challenge to the sufficiency of the evidence. Lockhart
v. Nelson, 488 U.S. 33, 40 (1988); accord Hillard v. State, 950 So. 2d 224, 230 (¶28) (Miss.
Ct. App. 2007).
31
a hotel in Greenwood about three hours after the shooting. Keys stated that there was no
discussion about shooting or seeking revenge against the Loves before the group left
Holland’s house that night en route to a lingerie party. Keys denied that he knew about any
plan to attack the Loves or knew the Loves would be on the highway in the Pontiac. Keys
claimed that he was shocked when Jones raised his gun and began shooting at the Pontiac.
According to Keys, “days prior” to the shooting Jones had said that he needed to get the
Loves because they had shot a friend of Keys and Jones. The majority cites this prior
conversation as if it is evidence against McClung. Ante at ¶65. But there is no evidence that
McClung was a party to that prior conversation or knew anything of Jones’s or Holland’s
intentions. Keys stated that immediately after the shooting Holland made arrangements to
switch cars in Moorhead. And after the group arrived at the hotel in Greenwood, Jones and
Holland left alone, apparently to get rid of their guns. Keys, McClung, and Buchanan spent
the night at the hotel and called a friend to pick them up in the morning. At the time of his
interview, Keys had not spoken to Buchanan or McClung since the morning after the
shooting.
¶74. Even with Keys’s improperly admitted statement, see supra n.18, the evidence is
insufficient to sustain McClung’s conviction because it establishes only his presence at the
scene of the crime. McClung’s rental of a hotel room three hours after the shooting is not
sufficient to prove, beyond a reasonable doubt, that he encouraged or assisted Jones or
Holland prior to or during the commission of their offense. McClung’s rental of the room
might have supported charging him as an accessory after the fact. See Miss. Code Ann. §
3297-1-5 (Rev. 2014); Harris v. State, 290 So. 2d 924, 925-26 (Miss. 1974). However,
McClung was indicted only as a principal/aider and abettor. See Hall v. State, 127 So. 3d
202, 204 (¶7) (Miss. 2013) (“[A]ccessory after the fact is a distinct crime for which a person
cannot be punished unless indicted.” (quotation marks omitted)). Just because McClung got
a hotel room hours after the crime, we cannot assume that he provided some unknown form
of encouragement or assistance prior to or during the crime. That is not a reasonable
inference based on the evidence but mere speculation and conjecture.
¶75. In addition, the mere fact that McClung “made no attempt to leave the group” after
the shooting, ante at ¶67, is insufficient to establish, beyond a reasonable doubt, that he
encouraged or assisted Jones or Holland prior to or during the shooting. As noted above,
mere presence at a crime does not support a conviction for aiding and abetting—even if the
defendant took no steps to prevent the crime and actually approved of the crime. Hughes,
983 So. 2d at 276 (¶14). It follows that McClung cannot be convicted of aiding and abetting
just because he did not quickly disassociate himself from Jones and Holland after he
witnessed them open fire on the Loves. An “attempt to leave” a murderous group can be a
risky proposition. It would be speculation and conjecture to say that McClung must have
somehow encouraged or assisted in the crime just because he “made no attempt to leave”
afterward.
¶76. There is nothing else in Keys’s statement to show that McClung participated in or
knew about any plan to attack the Loves. Nor is there any evidence that he encouraged or
assisted Jones or Holland in the shooting. To find McClung guilty as an aider and abettor
33
in the shooting, the jury had to find, beyond a reasonable doubt, that McClung actually aided,
counseled, or encouraged Jones or Holland in the commission of the crime. Jones v. State,
710 So. 2d 870, 874 (¶15) (Miss. 1998). There is no evidence to support such a finding.
Keys’s statement proves only that McClung was present in the Tahoe, which is insufficient
to sustain the conviction. Hughes, 983 So. at 276 (¶14).
¶77. Tellingly, the majority opinion does not even hazard a guess as to what type of
assistance or encouragement McClung might have provided to Jones or Holland. The
majority simply holds that there is sufficient evidence to establish, beyond a reasonable
doubt, that McClung aided and abetted them in some unknown and unspecified way. Such
a conclusion requires far too much speculation to support a criminal conviction. Therefore,
I would render a judgment of acquittal in favor of McClung on the remaining counts against
him. I respectfully concur in part and dissent in part.
McDONALD, J., JOINS THIS OPINION.
McDONALD, J., CONCURRING IN PART AND DISSENTING IN PART:
¶78. I agree and concur with the majority’s analysis of this case and in its conclusion that
McClung’s conviction should be reversed; I only disagree with the majority’s remand of the
case. I would both reverse and render.
¶79. With the severance of McClung’s case and the proper exclusion of the videotaped
statement of Jacarious Keys, the only connection McClung has with this case is the fact that
he rented a room at the Best Western hotel that night. Jasmine Cage, who saw the Tahoe
pass her with an interior light on, testified that McClung was not in the car when shots were
34
fired at the Love vehicle. None of the surviving occupants of the Love vehicle—Kelsey
Jennings, Ken-Norris Stigler, and Perez Love—identified McClung as a passenger in the
Tahoe either. In an interview at UMMC the next day, Perez named David Reedy, Armond
Jones, Michael Holland and Keys as occupants in the vehicle that had pulled up next to them
and was shooting at them. At trial, Perez and Stigler testified that Jones was in the front seat
shooting an AK-47, and Holland was in the back seat shooting a pistol. Neither mentioned
seeing McClung. Jennings testified that he did not see the vehicle that came alongside them
and started shooting, so he could not testify as to the occupants.
¶80. The only testimony connecting McClung to this case is Detective Stanton’s testimony
that McClung had rented a room at the Best Western hotel that night.
Q. . . . But your investigation showed that James McClung, he rented the
room, correct?
A. Correct.
Q. He rented the room on August 15th. Yes?
A. Yes.
Q. And he checked out on August 16th, correct?
A. Well, I really don’t know what time he checked out, but it was rented
for one night, I believe.
Q. And you had an opportunity to look at a video from the Best Western?
A. I did examine the video footage from the Best Western.
Q. And when you looked at the video, you didn’t see Sedrick Buchanan in
the video, did you?
A. The only person that I saw on the video was James McClung when he
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came in to register for the room and when he went to the room and left
the room from the interior portion. Of course, there are blind spots in
the system, and that’s all we saw.
So there was no evidence that McClung was there that night with Keys, Holland, Buchanan,
or Jones:
Q. With regard to Keys’ statement that they went back to the Best
Western, you were not able to verify that all of them were there at that
time in and around the shooting, am I correct?
A. I could not conclude or rule out where they reentered that room that
night or that morning at all.
Q. In fact, you have no evidence of them being there at all together during
this time, the renting of the room or thereafter, correct?
A. Other than the statement of Jacarius Keys, no.
Moreover, on cross-examination, Staten admitted that McClung had frequently rented rooms
at the Best Western and was actually found at the Best Western when he was arrested for this
charge.
¶81. With the exclusion of Keys’s statement, the remaining evidence against McClung is
insufficient to support his convictions of aggravated assault in this case.
In evaluating the sufficiency of the evidence, this Court must decide whether
it allows a jury to find beyond a reasonable doubt that the accused committed
the act charged, and that he did so under such circumstances that every element
of the offense existed; and where the evidence fails to meet this test it is
insufficient to support a conviction.
Ringer v. State, 203 So. 3d 794, 796 (¶3) (Miss. Ct. App. 2016) (internal citation mark
omitted). The elements of aggravated assault are found in Mississippi Code Annotated
section 97-3-7(2)(a) (Rev. 2014):
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A person is guilty of aggravated assault if he or she (i) attempts to cause
serious bodily injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life; (ii) attempts to cause or purposely or knowingly causes bodily
injury to another with a deadly weapon or other means likely to produce death
or serious bodily harm; or (iii) causes any injury to a child who is in the
process of boarding or exiting a school bus in the course of a violation of
Section 63-3-615 . . . .
Here, there is no proof that McClung attempted to cause or purposely caused bodily injury
to any of the people riding in the Love vehicle that night even if the evidence is weighed in
the light most favorable to the jury’s verdict. Consequently, the case not only needs to be
reversed; it needs also to be rendered. “Reversals based upon a finding that the verdict is
against the overwhelming weight of the evidence result in remand for new trial. Reversals
due to trial error also result in remand. Reversals based upon a finding that the evidence is
insufficient to support the verdict, however, are not remanded but are rendered.” Moore v.
State, 755 So. 2d 1276, 1280 (¶15) (Miss. Ct. App. 2000). It would be a waste of judicial
resources and would put an unnecessary financial and psychological burden on McClung to
try the case against him again. Accordingly, I would reverse McClung’s conviction and
render judgment in his favor.
WESTBROOKS, J., JOINS THIS OPINION.
McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:
¶82. Because I believe that the multiple tests implemented today regarding forfeiture by
wrongdoing are unnecessarily complex, I respectfully dissent in part. We should strive to
provide clarity to the Bench and Bar in how to implement the Mississippi Rules of Evidence.
This is especially so because “[t]rials are often chaotic and sometimes intensely adversarial,”
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and we need the Rules “to bring order and fair play to the trial process.” Richards v. State,
No. 2017-KA-00809-COA, 2019 WL 1771923, at *4 (¶18) (Miss. Ct. App. Apr. 23, 2019).
We need tests and rules that can be applied in the chaotic arena of trial.
¶83. The majority cites to various decisions from the U.S. Supreme Court, the Fourth
Circuit, the Fifth Circuit, the Tenth Circuit, and the Army Court of Criminal Appeals.19 Not
only do we adopt a new interpretation of a rule we have never previously analyzed, but we
also adopt a new sub-test, on the “conspiratorial responsibility theory.” I am greatly reluctant
to find the State was in error under the boundaries of the law as it was known at trial after
we have traveled so far to find reasons for error. I also think this interpretation does not
provide the clarity needed for a clear application of the Rule.
¶84. The better path would be to confine ourselves to the plain language of the rule and
whether the exception was or was not met. More precisely, we should confine ourselves to
whether the trial court was within its discretion in finding that Rule 804(b)(6) was met.
19
I believe the sprawl of the majority opinion into federal cases is also unnecessary
for purposes of placing our own interpretation of our own Rules at the forefront. In 1985
the Mississippi Supreme Court adopted the Rules of Evidence, and those Rules were
implemented by the Court itself, under power vested by the Mississippi Constitution of
1890. See M.R.E. Adopting Order (Miss. Jan. 1, 1986); Newell v. State, 308 So. 2d 71, 76
(Miss. 1975) (“The inherent power of this Court to promulgate procedural rules emanates
from the fundamental constitutional concept of the separation of powers and the vesting of
judicial powers in the courts.”).
In contrast, the Federal Rules of Evidence were written and adopted by Congress as
a statutory codification of evidentiary rules for the federal court system. See Daubert v.
Merrell Dow Pharm. Inc., 509 U.S. 579, 587 (1993). So our rules are written by our State
Judiciary and interpreted as seen fit; the Federal rules are written by its Legislature and
required to be interpreted as any other statute. At root, there are simply different issues
facing the federal courts and different modes of interpretation. I vastly prefer us developing
our own interpretation of our own Rules and not “lockstepping” with the Federal Judiciary.
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¶85. The majority is correct that we must reverse McClung’s convictions because the
motion for severance should have been granted. However, I respectfully dissent from its
digression regarding the admission of Keys’ statement and its decision to reverse the
conviction on that evidentiary ruling.
WESTBROOKS, J., JOINS THIS OPINION.
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