OF JUDGMENT: 09/02/2014
COUNTY CIRCUIT COURT, HON. LAMAR PICKARD JUDGE.
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
JOSEPH SCOTT HEMLEBEN.
DISTRICT ATTORNEY: ALEXANDER C. MARTIN.
Sitting as "thirteenth juror, " the Court of
Appeals reversed Marlon Little's convictions and remanded
for a new trial, finding the weight of the evidence
preponderated heavily against the verdict. We granted
certiorari to clarify the appellate court's role when
reviewing a motion for new trial. Despite this Court's
prior language suggesting otherwise, neither this Court nor
the Court of Appeals assumes the role of juror on appeal. We
do not reweigh evidence. We do not assess the witnesses'
credibility. And we do not resolve conflicts between
evidence. Those decisions belong solely to the jury. Our role
as appellate court is to view the evidence in the light most
favorable to the verdict and disturb the verdict only when it
is so contrary to the overwhelming weight of the evidence
that to allow it to stand would sanction an unconscionable
Applying this standard, we find no reason to disturb
Little's guilty verdict. Therefore, we reverse the
judgment of the Court of Appeals and reinstate and affirm the
judgment of the Claiborne County Circuit Court.
Facts and Procedural History
Investigation and Conviction
Nurse practitioner David Ellis was attacked from behind and
robbed while leaving his medical clinic. Ellis reacted by
swinging his computer bag at the assailant's head. During
the struggle, Ellis fell down, and his attacker also
stumbled. Ellis was on the ground when his attacker stuck a
gun in Ellis's face. Ellis saw the man "square in
the face" from about three feet away. The man demanded
Ellis's wallet. Ellis complied. And the man fled.
Ellis went straight to the Port Gibson Police. He described
the robber as "a black male wearing all black with a
hood over his head." His body type was
"small." And he "actually could have been
between 20 or better."
A few days later, Police Chief Calvin Jackson received a tip
from an informant. Based on this tip, Chief Jackson put
Little's photo in a lineup. Chief Jackson presented the
seven-photo lineup to Ellis. When Ellis saw the photo of
Little, the fourth in the lineup, Ellis recognized him as the
robber immediately. Little was indicted for armed robbery and
tried a month later.
The State called both Chief Jackson and Ellis as witnesses.
Chief Jackson testified about the informant's tip
connecting Little to the robbery. Based on this tip, he
composed the photo lineup and showed it to Ellis. On
cross-examination, Chief Jackson was asked about
discrepancies between Ellis's initial description of his
attacker given to the police and Little's actual physical
characteristics. He was also asked about a later description
given to a private investigator hired by Little's
attorney. In Ellis's statement to Little's private
investigator, Ellis said the robber was clean-shaven, while
Little was known to have a goatee. Chief Jackson did not know
if Little had facial hair when he was arrested. But Chief
Jackson agreed with defense counsel that Little was not
"stocky or muscular." Chief Jackson was also asked
about Little's gold teeth and the fact Ellis never
mentioned them to the private investigator. Chief Jackson did
not recall any mention of Little's teeth in Ellis's
When Ellis took the stand, he stated clearly and
unequivocally that Little was man who robbed him. Ellis
recognized Little based on Little's entire face,
especially Little's pronounced facial creases. Drawing
from his medical background, Ellis described Little's
facial creases as "nasolabial folds." Ellis
testified that he too shared the same physiological feature.
Ellis also told the jury that he recognized Little by his
eyes. He remembered them because they were
"scared-looking." He described Little as
"slender but solid"-meaning Little was not easily
moved or knocked down when Ellis struck him with the computer
When questioned by defense counsel, Ellis conceded that he
probably had described the robber previously as
"muscular and stocky" in the recorded statement to
Ellis's investigator. Ellis explained that Little seemed
"solid as a rock" when Little jumped him and
grabbed him. As for Little's mouth, Ellis said he had not
noticed Little's teeth because Ellis "had a .45
pistol stuck right there in my face." Ellis also was
asked about the robber's age discrepancy. He described
the robber to Chief Jackson as twenty years old "or
better." And Little was actually thirty-nine at the time
of the attack. To this, Ellis said he did not know how old
Little actually was. He explained he was not a good judge of
Little called no witnesses. The jury found him guilty of
armed robbery and possession of a weapon by a convicted
felon. He was sentenced to thirty years'
imprisonment for armed robbery and ten years' for
felon-in-possession, with his sentences to run concurrently.
After his post-trial motions for judgment not withstanding
the verdict and for a new trial were denied, he timely
Court of Appeals' Decision
Little's appeal was assigned to the Court of Appeals.
Little raised one issue-that his conviction was against the
weight of the evidence, requiring a new trial. In a six-three
opinion, the Court of Appeals reversed Little's
convictions and remanded for a new trial. Little v.
State, No. 2014-KA-1505-COA, 2016 WL 6876506 (Miss. Ct.
App. Nov. 22, 2016).
Quoting Bush v. State, 895 So.2d 836 (Miss. 2005),
the Court of Appeals majority described its appellate posture
as that of "thirteenth juror." Little,
2016 WL 6876506, at *2 (¶7). And in this role, "if
it 'disagrees with the jury's resolution of the
conflicting testimony, ' the property remedy is to grant
a new trial." Id. (quoting Bush, 895
So.2d at 844).
The appellate court majority found Ellis's initial
identification conflicted with Little's "actual
physical attributes, including age and build."
Id. at *2 (¶10). And because Ellis's
identification of Little as the robber was the only
substantive evidence against Little, the majority found a new
trial was warranted. Id. at *3 (¶11).
The dissent disagreed with the majority's use of the
"thirteenth juror" standard of review. Id.
at *3 (¶14) (Griffis, J., dissenting). The dissent
quoted extensively from Judge Larry Roberts's special
concurrence in Hughes v. State, 43 So.3d 526, 530-33
(Miss. Ct. App. 2010). Little, 2016 WL 6876506, at
**3-6 (¶16) (Griffis, J., dissenting). In that case,
Judge Roberts traced the history of the "thirteenth
juror" language and explained how an appellate court,
faced with a cold record, can never perform the function of
"juror." Hughes, 43 So.3d at 530-33
(Roberts, J., dissenting). Applying an abuse-of-discretion
standard, the dissent in Little ...