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McClung v. State

Court of Appeals of Mississippi

December 3, 2019

JAMES McCLUNG A/K/A JAMES EARL McCLUNG JR. APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/15/2017

          LEFLORE COUNTY CIRCUIT COURT HON. W. ASHLEY HINES TRIAL JUDGE.

          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.

          BEFORE BARNES, C.J., CARLTON, P.J., AND C. WILSON, J.

          CARLTON, P.J.

         ¶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, 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 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 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 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 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 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 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 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 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. 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 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 Sixth Amendment of the United States Constitution[8] 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 (ΒΆ18) (Miss. 2008). For the reasons addressed below, we ...


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