294 So.3d 1216
Miss. Ct. App.2019Background
- On Aug. 15, 2015 a light-colored Tahoe fired on a red Pontiac on Hwy 82; D’Alandis Love was killed and three occupants were seriously injured.
- Jacarius ("Keys") gave a videotaped, post-arrest statement to law enforcement (with counsel present) implicating James McClung Jr., Sedrick Buchanan, Michael Holland, and Armand Jones; Keys said he was driving the Tahoe.
- In July 2016 a grand jury indicted Keys and the four others for murder and attempted murder; Keys was murdered on Dec. 28, 2016 and therefore unavailable at trial.
- In May 2017 the remaining four defendants were tried jointly; the prosecution played Keys’s videotaped statement for the jury over defendants’ objections.
- The jury acquitted McClung of murder but convicted him of three counts of aggravated assault; McClung received three consecutive 20-year terms and appealed.
- The Court of Appeals reversed and remanded, concluding that admitting Keys’s testimonial statement against McClung (absent proof of forfeiture) and denying severance were reversible errors.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McClung) | Held |
|---|---|---|---|
| Admissibility under Confrontation Clause (testimonial hearsay) | Keys’s videotaped statement is admissible under hearsay exceptions (M.R.E. 804(b)(3), (5)) and under forfeiture-by-wrongdoing (804(b)(6)). | Admission violated Sixth Amendment confrontation rights and was hearsay; Keys was unavailable and his statement implicates McClung only via Keys. | Statement was testimonial; State failed to prove forfeiture-by-wrongdoing as to McClung. Admission violated Confrontation Clause — reversible error. |
| Forfeiture by wrongdoing via conspiratorial responsibility | Forfeiture can be imputed to co-defendants where murder of declarant was within scope/in furtherance of conspiracy and reasonably foreseeable (Cherry/Thompson theory). | No evidence McClung intended, participated in, or acquiesced in making Keys unavailable; he was not a suspect in Keys’s murder and lacked notice/intent. | Court rejected imputation here: Giles requires intent to make witness unavailable; State presented no proof McClung intended or acquiesced in Keys’s murder; Cherry theory inapplicable. |
| Denial of severance | Joint trial appropriate; evidence against co-defendants overlaps and trial judge has discretion. | Joint trial prejudiced McClung because Keys’s statement (improperly admitted) implicated co-defendants and was particularly prejudicial to McClung — requested severance. | Trial court abused discretion by denying severance; prejudice was plain given the improperly admitted statement. Reversal and remand warranted on this ground as well. |
| Sufficiency of evidence and remedy (remand v. render) | Even excluding Keys’s statement, other evidence and inferences support aiding-and-abetting liability. | Without Keys’s statement evidence is insufficient; conviction should be rendered (acquittal). | Court held that although evidence is thin without Keys, appellate practice requires reversing and remanding for new trial when an evidentiary error likely affected the verdict; thus reversed and remanded (some judges would have rendered). |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (statements made during police interrogation are testimonial and trigger Confrontation Clause protections)
- Davis v. Washington, 547 U.S. 813 (2006) (distinguishes testimonial v. nontestimonial statements; primary-purpose test)
- Giles v. California, 554 U.S. 353 (2008) (forfeiture-by-wrongdoing requires intent to make witness unavailable)
- United States v. Cherry, 217 F.3d 811 (10th Cir. 2000) (conspiratorial-responsibility theory: co-conspirator’s wrongdoing in furtherance of conspiracy may impute forfeiture if reasonably foreseeable)
- United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012) (applies Giles: must show defendant engaged in conduct designed to prevent witness from testifying; examines foreseeability and intent)
- Lockhart v. Nelson, 488 U.S. 33 (1988) (appellate courts may consider erroneously admitted evidence when assessing sufficiency)
- Smith v. State, 986 So. 2d 290 (Miss. 2008) (Mississippi application of Crawford/primary-purpose testimonial test)