JAMES McCLUNG A/K/A JAMES EARL McCLUNG JR. APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 06/15/2017
LEFLORE COUNTY CIRCUIT COURT HON. W. ASHLEY HINES TRIAL
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.
BARNES, C.J., CARLTON, P.J., AND C. WILSON, J.
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
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. 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.
OF FACTS AND PROCEDURAL HISTORY
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,
2015. 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.
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.
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.
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 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).
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.
McClung, Holland, Buchanan, and Jones were tried together
before a jury in Leflore County Circuit Court. Each defendant
was represented by his own lawyer.
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
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 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
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.
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 trial that
Investigator Staten recovered from the red Pontiac.
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
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
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.
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 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.
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.
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 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.
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.
On cross-examination, Cage testified that she knew McClung
and that she did not see him in the vehicle that night.
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 or anyone in it.
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.
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. 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
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 Keys was not available at trial because he had been
killed months earlier. 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.
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. 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.
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.
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
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."
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. 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.
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
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. 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
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.
Buchanan turned himself in on September 18, 2015, and Holland
was arrested shortly after the incident. Although David Reedy
was a suspect who was arrested and jailed for these crimes,
the Grand Jury did not indict him.
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
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.
Admissibility of Keys's Statement Against
The Confrontation Clause and Exceptions to the Rule
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 Sixth Amendment of the United States
Constitution and Article 3, Section 26 of the
Mississippi Constitution,  which both provide a defendant the
right to confront a witness against him. McClung also
asserted that the statement was inadmissible
hearsay. 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 ...