SEDRICK BUCHANAN AND ARMAND JONES A/K/A ARMOND JONES A/K/A A.J. JONES APPELLANTS
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 06/15/2017
LEFLORE COUNTY CIRCUIT COURT HON. W. ASHLEY HINES TRIAL JUDGE
ATTORNEYS FOR APPELLANTS DANIEL HINCHCLIFF KEVIN HORAN
BRADLEY D. DAIGNEAULT
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, namely Armand Jones, Sedrick
Buchanan, Michael Holland, and James Earl McClung Jr. In July
2016, all five men, Keys, Jones, Buchanan, Holland, and
McClung, 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.
This appeal concerns only Jones and Buchanan. After a
four-day trial, the jury found Jones guilty of first-degree
murder with respect to the victim who was killed, and guilty
of three counts of attempted first-degree murder with respect
to the other three surviving victims. Jones was sentenced to
serve life in prison for his first-degree murder conviction,
and three terms of thirty years for his other convictions,
all to run consecutively. Buchanan was found 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. Jones and Buchanan appeal. Finding no
error, we affirm Buchanan's and Jones's convictions
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 pm 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 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 Jones,
Buchanan, McClung, 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, Buchanan, Keys, Holland, 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); and three separate counts of attempted murder of
Perez Love, Jennings, and Stigler in violation of Mississippi
Code Annotated section 97-1-7 (Rev. 2014) and section
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. To avoid repetition, the details
of Keys's murder will be addressed during the Court's
discussion of Buchanan's and Jones's Confrontation
Clause assignment of error, below.
Jones, Buchanan, McClung, and Holland were tried together
before a jury in Leflore County Circuit Court in May 2017.
Each were represented by their own counsel.
Pretrial 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 Jones and
Buchanan's Confrontation Clause assignment of error.
After the trial court denied defendants' motions to
exclude Keys's videotaped statement, each defendant moved
pretrial to sever their case from the others. The trial court
also denied those motions. The trial court's ruling on
the severance issue will also be discussed below.
Buchanan also moved pre-trial to exclude testimony and
evidence related to his post-shooting arrest that occurred in
Carroll County six months after the shooting when Buchanan
was out on bond. Buchanan was a passenger in the vehicle that
was stopped. In the course of the arrest, the Carroll County
deputies recovered a .40-caliber pistol from the console
between the driver's seat and front-passenger seat of the
vehicle. Buchanan argued that the gun should be excluded at
trial on relevancy grounds and that such evidence was
prejudicial because Buchanan did not own the gun, nor was it
tied to the Love shooting. The trial court ruled that
Buchanan's motion was premature and that the issue should
be raised at trial outside the presence of the jury if the
State sought to introduce the recovered gun.
The gun was admitted into evidence at trial, and the trial
court allowed limited testimony about the gun's recovery.
Jones and Buchanan both assert on appeal that the trial court
erred in doing so. The Court will discuss this issue in
further detail below.
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 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 pulled two other
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 its safety was locked when she found
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 examined the .40-caliber pistol recovered when
Buchanan was stopped after his arrest in this case, when he
was out on bond. Hathcock could not positively determine
whether the gun fired the recovered shell casing, but the gun
could not be excluded as having done so.
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, which Hathcock explained is some sort of
semiautomatic assault rifle or 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.
The State called a number of lay witnesses as well.
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 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; and after she saw
the red Pontiac, she saw a Tahoe or Yukon that passed her on
the right. 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 Jones, as well as Keys, David Reedy, 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 night time, and he said that it did. Cage
testified that she then drove straight to the Moroccan
Lounge. She testified that when she did not see that the red
Pontiac was 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 Love was in the vehicle.
On cross-examination, Cage confirmed that she knew Buchanan
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 that someone opened fire on them in the red Pontiac,
but he could not identify either the vehicle or anyone in it.
Stigler and Perez Love both testified that the shooters were
traveling in a beige or gold Tahoe-type vehicle. Perez Love
testified that he saw 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
Love 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 Love in the top of
On cross-examination, Stigler confirmed that he did not see
Buchanan in the vehicle that night.
Perez Love testified at trial that he could not positively
identify anyone besides Holland and Jones in the vehicle. He
admitted, however, that he had given a statement after the
incident, while he was hospitalized, and identified other
people in the vehicle, including Reedy and
Keys. 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 Love
said that after he thought about it more, he realized that he
never really saw anyone except Jones and Holland. On
cross-examination, Perez Love also testified that he thought
Reedy was in the Tahoe that night because Reedy used to own
As noted above, Keys gave a videotaped statement to
Investigator Staten a few weeks after the incident. He was
indicted along with Jones, Buchanan, McClung, and Holland,
but he 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, on the night of the
shooting, he was driving the gold Tahoe. He said that Michael
Holland and Armand Jones were on the passenger side, James
McClung was in the rear seat on the driver's side, and
Sedrick 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. At 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 that night). Keys also said at the
end of his statement that Jones had the AK-47 that night
because "he always had it." 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 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-47. 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, 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.
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 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,
Buchanan, and McClung 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
number 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 at that time that he
had given an incriminating statement.
Buchanan turned himself in on September 18, 2015, and Holland
was arrested shortly after the incident. Although Reedy was a
suspect who was arrested and jailed for these crimes, the
Grand Jury did not indict him.
The State rested, and Jones, Buchanan, McClung, 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 found
Jones guilty of first-degree murder with respect to
D'Alandis Love and guilty of three counts of attempted
first-degree murder with respect to Perez Love, Jennings, and
Stigler. Jones was sentenced to serve life in prison for his
first-degree murder conviction, and three terms of thirty
years for his other convictions, all to run consecutively,
and the court ordered Jones to pay court costs and fees. The
jury acquitted Buchanan on Count I (deliberate-design murder
of D'Alandis Love) and found Buchanan guilty of
aggravated assault with respect to Perez Love, Jennings, and
Stigler. The trial court sentenced Buchanan to serve three
consecutive terms of twenty years for each aggravated-assault
conviction and ordered Buchanan to pay court costs and fees.
Jones and Buchanan each filed motions for judgment
notwithstanding the verdict and for a new trial, which the
trial court denied. Jones and Buchanan appealed.
Admissibility of Keys's Statement Against Buchanan and
Confrontation Clause and Exceptions to the Rule Against
Buchanan and Jones assert that the trial court erred in
allowing Keys's statement into evidence against them,
alleging that it violated their 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 find no error in the trial
court allowing Keys's statement against Buchanan and
Jones to be admitted at trial.
Before trial, Buchanan and Jones, as well as the other
defendants, moved to exclude Keys's statement given to
Investigator Staten based upon the Sixth Amendment and
hearsay grounds. The State argued in response that Keys's
statement was admissible against each defendant under Rule
804(b)(3) (the statement-against-interest exception) and the
exception under Rule 804(b)(5) (the catch-all exception) of
the Mississippi Rules of Evidence. The State also argued that
Keys's statement was admissible under the
forfeiture-by-wrongdoing theory as embodied in Rule 804(b)(6)
and caselaw recognizing a similar exception under the
At the admissibility hearing, the defendants presented one
witness, Attorney Kevin Horan, who represented Jones at
trial. He testified that Keys had come to his office, told
him he was out on bond, and that Keys had told him "the
only reason he gave a statement was because he got a lower
bond." Horan testified that at that point, he stopped
Keys immediately and told him if was going to "change
his story" then he needed to do it through counsel.
Horan testified that Keys did not "tell me what he said
or anything." According to Horan, Keys just "made
some other comments and then he left." Horan did not
testify whether he told anyone else about Keys's visit to
his office. However, the record reflects that Keys's
statement was provided to all the co-defendants through
discovery at the beginning of the case.
The State presented two witnesses. The first witness the
State called was Sergeant Jeri Bankston, a detective with the
Greenwood Police Department, who investigated the Keys
shooting that occurred on December 28, 2016. She obtained the
video-surveillance footage from the Chevron Station near
where the shooting occurred. The video-camera footage was
played at the hearing. The footage showed Keys running across
the Chevron parking lot with Holland running behind him.
Buchanan and other men, including Anthony Flowers, Ladarius
Lemock, and Danarius Jackson, were in the parking lot at the
same time. The footage also showed Holland with a gun in his
hand. Sergeant Bankston testified that she developed five
suspects in the Keys case: Holland, Buchanan, Lemock,
Jackson, and Flowers.
On cross-examination, Sergeant Bankston testified that Jones
was in jail at the time of Keys's death. Sergeant
Bankston further testified that Buchanan was arrested on
December 29, 2016, for Keys's shooting, and that Holland
received a text message from Buchanan when Buchanan was in
jail. The caller-ID showed the text message was from
"A.J.," whom she believed was Armand Jones. She
said that the text message read something to the effect of
"Hey, this is Sed." She did not recall what was in
the rest of the text message. Sergeant Bankston confirmed
that Jones and Buchanan were in jail at the same time when
the text message was sent from Jones's phone.
The State's second witness was Investigator Staten, the
chief investigator in the Love shooting case. He testified
that shortly after the August 15, 2015 shooting, Keys, with
his lawyer, came to the Leflore County Sheriff's Office
and said that he wanted to give a statement. Investigator
Staten was called in to take the statement. He testified that
he initially interviewed Keys, with his lawyer present, on
September 2, 2015. Due to equipment failure, however,
Investigator Staten had to re-interview Keys on September 3,
2015. Keys's lawyer was also present at that interview.
The interview was videotaped, but not transcribed. The
videotaped interview was played for the trial court at the
During cross-examination, Investigator Staten acknowledged
that there were inconsistencies in Keys's statement as
compared to statements given by other witnesses regarding the
people in the Tahoe and where they were sitting.
After argument of counsel, the trial court denied the
defendants' motions to exclude Keys's statement and
stated that it would enter a written order stating the
reasons supporting its decision to allow the videotaped
interview to be admitted into evidence at trial. In its
written order, the trial court concluded that Keys's
statement was admissible under three exceptions to the
hearsay rule: Rule 804(b)(3) (statement against a
person's interest); Rule 804(b)(5) (the catch-all hearsay
exception); and Rule 804(b)(6) (the forfeiture-by-wrongdoing
exception). We address the trial court's rulings
Relevant evidence, as defined in Rule 401, is generally
admissible subject to certain laws regarding exclusions and
exceptions. See M.R.E. 402. Rules regarding hearsay
address concerns with admitting evidence that, albeit
relevant, is not sufficiently reliable. See M.R.E.
801 & advisory committee note. The Mississippi Supreme
Court has recognized that "[n]on testimonial
hearsay is subject to evidentiary rules concerning
reliability rather than being subject to scrutiny under the
Confrontation Clause. However, testimonial hearsay
must be filtered by the Confrontation Clause."
Smith, 986 So.2d at 296-97 (¶20) (emphasis
added) (citing Crawford, 541 U.S. at 36, 53)).
Statements given in the course of a police interrogation are
testimonial "when the circumstances objectively
indicate that . . . the primary purpose of the interrogation
is to establish or prove past events potentially relevant to
later criminal prosecution." Id. at 297
(¶21) (quoting Davis, 547 U.S. at 822).
Under this test, we conclude that Keys's statement was
testimonial in that Investigator Staten interrogated Keys to
establish events concerning the shooting-events potentially
relevant to future criminal prosecution.
Accordingly, even if Keys's statement meets the
evidentiary reliability rules set forth in Rule 804(b)(3) or
Rule 804(b)(5), these rules do not circumvent a
defendant's rights under the Confrontation Clause.
Smith, 986 So.2d at 298 (¶26) (recognizing that
"Crawford holds that when dealing with
testimonial evidence, a finding of reliability does not
create an exception to the Confrontation Clause")
(citing Crawford, 541 U.S. at 61); see Sanders
v. State, 228 So.3d 888, 891-92 (¶¶12-16)
(Miss. Ct. App. 2017) (finding that the circuit court erred
when it admitted witness's testimonial statement in
violation of the Confrontation Clause of the Sixth Amendment,
but finding error harmless under the circumstances of that
A party, however, "who obtains the absence of a witness
by wrongdoing forfeits the constitutional right to
confrontation." Davis, 547 U.S. at 833; see
also Crawford, 541 U.S. at 62 ("[T]he rule of
forfeiture by wrongdoing . . . extinguishes confrontation
claims on essentially equitable grounds . . . .").
Likewise, under Rule 804(b)(6), a party forfeits his rights
to object to a prior testimonial statement on hearsay grounds
if the party "wrongfully caused-or acquiesced in
wrongfully causing-the declarant's unavailability as a
witness, and did so intending that result." M.R.E.
804(b)(6) & advisory committee note.
The trial court in this case found that Keys's statement
was admissible against Buchanan and Jones under the
forfeiture-by-wrongdoing doctrine as embodied in Rule
804(b)(6). Like the trial court, we find no Mississippi law
interpreting Mississippi Rule 804(b)(6), and thus we
electively look for guidance from federal cases analyzing the
identical Rule 804(b)(6) of the Federal Rules of Evidence and
related Confrontation Clause principles.
As recognized by the United States Supreme Court, federal
Rule 804(b)(6) codifies the equitable doctrine of forfeiture
by wrongdoing, Davis, 547 U.S. at 833, "which
applies only when the defendant engaged or acquiesced in
wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness." Giles
v. California, 554 U.S. 353, 367 (2008) (internal
quotation mark omitted). In order for Keys's statement to
be admissible against Buchanan and Jones, the State, as the
party offering the evidence, was required to prove the facts
meeting these requirements as to Jones and Buchanan by a
preponderance of the evidence. United States v.
Gurrola, 898 F.3d 524, 534 (5th Cir. 2018).
With respect to Buchanan, based upon our review of the record
and the applicable law, we find that the State presented
sufficient evidence at the admissibility hearing to show that
Buchanan engaged in or acquiesced in the wrongdoing that was
intended to, and did, procure Keys's unavailability.
Giles, 554 U.S. at 367. Hence, the trial court did
not err in admitting the statement. As detailed above, the
video-camera footage played at the hearing showed Keys
running across the parking lot with Holland running behind
him. Holland was shown on the video with a gun. Keys was shot
moments later. Buchanan was there and appeared to be looking
around the area of the parking lot. We find that the trial
court could reasonably infer from Buchanan's location and
his mannerisms that Buchanan was acting as a lookout.
Additionally, Sergeant Bankston, the investigator on the Keys
murder, testified that Flowers, who was in the group with
Buchanan at the Chevron parking lot on the night Keys was
shot, stated that Keys "got what he deserved because he
turned State's evidence." Sergeant Bankston also
testified that she developed both Holland and Buchanan, as
well as Flowers and others, as suspects in Keys's murder.
Finally, Sergeant Bankston testified that Holland received a
text message from Buchanan on Jones's cell phone after
Buchanan was arrested and in jail for Keys's murder.
We find that the trial court could reasonably infer, based on
the totality of these circumstances, that a preponderance of
the evidence showed that Holland, with Buchanan's
assistance, killed Keys to prevent him from testifying.
Gurrola, 898 F.3d at 534 (The party seeking to have
a declarant's statements admitted against another party
under the forfeiture-by-wrongdoing exception must prove this
exception "by a preponderance of the evidence.").
In particular, at least a preponderance of the evidence
showed that Buchanan participated (or "engaged") in
Keys's murder by acting as lookout on the night of
Keys's murder. Regarding their intent to prevent Keys
from testifying, Jones's attorney, Kevin Horan, testified
at the admissibility hearing that Keys came to him and told
Horan that he had given a statement, and the record reflects
that Keys's statement was provided to defendants early in
the case. This, coupled with Flowers's presence in the
group with Buchanan at the Chevron parking lot the night of
Holland's shooting, and his subsequent statement that
Keys "got what he deserved because he turned State's
evidence," creates at least an inference that Holland
and Buchanan were motivated and intended to prevent Keys from
testifying at trial. Gurrola, 898 F.3d at 534.
At the very least, these circumstances support the trial
court's determination that Buchanan "acquiesced
in" Keys's murder. United States v. Rivera,
412 F.3d 562 (4th Cir. 2005), supports our
"acquiescence" determination. In Rivera,
the Fourth Circuit Court of Appeals discussed the term
"acquiescence," recognizing that it "consists
of 'the act or condition of acquiescing or giving tacit
assent; agreement or consent by silence or without
objection.'" Id. at 567 (quoting
Webster's Unabridged Dictionary 18 (Random House, 2d ed.
2001)). The court further observed that "the plain
language of [Rule 804(b)(6)] supports the district
court's holding that a defendant need only tacitly assent
to wrongdoing in order to trigger the Rule's
applicability . . . the personal commission of the crime is
not required." Id.
In sum, we find that the trial court did not abuse its
discretion or err in finding that the State met its burden of
proving, by a preponderance of the evidence, that Buchanan
"engaged in" or "acquiesced in"
Keys's murder for the purpose of preventing him from
testifying. Accordingly, we find that the trial court did not