233 So.3d 288
Miss.2017Background
- On Oct. 31, 2013, nurse practitioner Danny (David) Ellis was robbed and threatened with a .45 while leaving his clinic; he immediately reported the crime and later identified Marlon Little from a seven-photo lineup and at trial.
- Ellis initially described the robber as a "small," "muscular and stocky," clean-shaven Black male ~"20 years or better," and wearing a hood; Little was 39, not stocky, often had a goatee and gold teeth.
- Police Chief Calvin Jackson placed Little in the lineup after a confidential informant’s tip, despite acknowledging Little did not match Ellis’s initial description; no further physical or forensic evidence linked Little to the robbery.
- Little was convicted by a jury of armed robbery and felon-in-possession; sentenced to concurrent 30- and 10-year terms; post-trial motions were denied and Little appealed claiming the verdict was against the weight of the evidence.
- The Mississippi Court of Appeals (6–3) reversed and ordered a new trial, applying "thirteenth juror" language and finding the only substantive evidence (Ellis’s ID) conflicted with his earlier description.
- The Mississippi Supreme Court granted certiorari to clarify the appropriate standard for appellate review of a motion for new trial and to decide whether affirmance was warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of appellate review for a weight-of-the-evidence (motion for new trial) claim | Bush’s "thirteenth juror" language allows an appellate court to reweigh evidence and disagree with jury resolution | Appellate courts should review trial court denial of new trial for abuse of discretion and not act as a juror | The Court: appellate courts do not "sit as thirteenth juror"; review is for abuse of discretion, viewing evidence in light most favorable to the verdict and disturbing only for unconscionable injustice |
| Whether Little’s conviction was against the overwhelming weight of the evidence | Little: identification was unreliable and contradicted by Ellis’s initial description; ID came from a suggestive lineup and was sole substantive evidence | State: Ellis made a positive ID at lineup and trial; conflicting details were for jury to resolve; trial court did not abuse discretion | The Court: no abuse of discretion; evidence viewed favorably to verdict and jury credibility determinations stand; conviction reinstated |
| Admissibility and impact of informant tip and prosecutor’s closing argument (hearsay/Confrontation/plain error) | Little (dissent): informant tip bolstered ID, was hearsay, prosecutor invited jury to treat tip as substantive evidence; plain error warrants new trial | State: no plain-error review raised in majority opinion; trial court allowed testimony for purpose of explaining officer’s actions | Majority: did not reach or grant relief on plain-error/hearsay grounds; Dissent (Kitchens) found plain error and would reverse |
Key Cases Cited
- Bush v. State, 895 So. 2d 836 (Miss. 2005) (announced standard for weighing evidence and used "thirteenth juror" language)
- Amiker v. Drugs For Less, Inc., 796 So. 2d 942 (Miss. 2000) (discussed a trial judge’s superior position to weigh witnesses and referenced the "thirteenth juror" concept)
- Gavin v. State, 473 So. 2d 952 (Miss. 1985) (explains appellate courts are ill-equipped to find facts from a cold record)
- Lindsay v. State, 212 So. 3d 44 (Miss. 2017) (articulates that verdicts should be disturbed only when allowing them to stand would sanction an unconscionable injustice)
- Hughes v. State, 43 So. 3d 526 (Miss. Ct. App. 2010) (Roberts, J. concurrence tracing history of "thirteenth juror" and arguing it refers to trial court)
- Swindle v. State, 502 So. 2d 652 (Miss. 1987) (holding informant’s tip inadmissible as hearsay when offered as substantive proof, but admissible to explain officer’s conduct)
- Tibbs v. Florida, 457 U.S. 31 (U.S. 1982) (explains the concept of "weight of the evidence" as measure by the trier of fact)
- U.S. v. Robertson, 110 F.3d 1113 (5th Cir. 1997) (discusses trial court’s role in weighing evidence and assessing credibility)