Littleton v. State

390 So.3d 516

Wesley LITTLETON, Appellant

v.STATE of Mississippi, Appellee

NO. 2023-KA-00239-COA

Court of Appeals of Mississippi.

07/16/2024

YAZOO COUNTY CIRCUIT COURT, HON. JANNIE M. LEWIS-BLACKMON, JUDGE

ATTORNEYS FOR APPELLANT: MERRIDA COXWELL, CHARLES RICHARD MULLINS, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CASEY B. FARMER

BEFORE WESTBROOKS, P.J., McDONALD AND EMFINGER, JJ.

McDONALD, J., FOR THE COURT:

¶1. Wesley Littleton appeals his Yazoo County jury conviction for the first-degree murder of Willie Thomas. First, Littleton argues that the trial court erred by admitting evidence of an audio-recorded statement of a child witness over the objection of counsel and in violation of Littleton’s Sixth Amendment right to confront the witness. Second, he argues that the jury instructions failed to fully inform the jury of its duty regarding self-defense. Third, Littleton argues that the State violated his Sixth Amendment right to remain silent by commenting on his post-arrest silence. Fourth, Littleton argues he received ineffective assistance of counsel. Upon review, we reverse and remand for a new trial.

FACTS

¶2. On September 17, 2021, around 4:00 or 4:30 p.m., Littleton and Thomas were at Littleton’s home at 632 S. Central Alley in Yazoo City, Mississippi. Thomas’s child, DJ, was also at the home, playing on his iPad.¹ Littleton and Thomas proceeded to drink and talk and eventually called a friend to pick them up so they could get some food. While waiting for the friend to arrive, Littleton and Thomas began discussing their jail experiences in Madison County. Littleton claimed he was put on a 24-hour hold before being released on bail for a DUI charge. Thomas, however, denied that such a hold was required because he had not been held for twenty-four hours prior to his release for a drug charge. This eventually escalated into an argument, and Littleton claims Thomas pointed a gun at him. Trying to diffuse the situation, Littleton claims he told Thomas and DJ to leave the home. However, at some point while Thomas was leaving the home, Littleton shot Thomas. Thomas died shortly after the shooting. Littleton ultimately surrendered himself to the Yazoo County Sheriff’s Office and was charged with first-degree murder for the killing of Thomas.

¶3. The precise details of the events leading up to and following the shooting were contested at trial and are discussed in further detail below.

DJ

¶4. DJ was examined by the court prior to trial to determine if he was competent to testify. During this examination, DJ stated that he was eleven years old, that he knew the difference between the truth and a lie, and that he did not "have any problems with testifying." DJ was then excused to go back to the witness room. Following this examination, the court found that DJ was of tender years but was competent to testify. However, neither the State nor Littleton ever actually called DJ as a witness.

Deputy Nolan Warrington

¶5. Nolan Warrington, a deputy with the Yazoo County Sheriff’s Office, testified that he was a detective at the time of the shooting and was one of the responding officers. He spoke with a number of witnesses both at the crime scene and after the shooting. He also spoke with DJ when the child’s mother brought them to the sheriff’s office the day after the shooting. Warrington said that it was standard practice to send minor witnesses and victims to the Child Advocacy Center (CAC), where a trained professional would conduct a forensic interview. However, according to Warrington, DJ wanted to speak only to Warrington and nobody else. So, Warrington read the Miranda rights² to DJ and Jessica Jackson, DJ’s mother, and had both DJ and Jessica sign an acknowledgment that DJ was voluntarily making a statement.

¶6. At this point during Warrington’s testimony, the State then attempted to admit the audio recording of DJ’s interview. However, Littleton’s counsel objected, arguing that Warrington was not the proper witness to introduce the recording. A bench conference was held, and the State argued that Warrington was able to testify to the recording because he conducted the interview. Littleton’s counsel argued that the recording was an attempt to "back-door" DJ’s testimony without calling the child as a witness. The court pointed out that Littleton could call DJ as a witness, to which Littleton’s counsel responded, "Yes, ma’am. I will." The court then admitted the recording of the statement, and the State proceeded to play it for the jury.

¶7. In this interview, DJ was in a room with Warrington and Jessica. Warrington asked DJ what happened at the house the night before, and the following was said:

DJ: They were arguing.

Warrington: Who was arguing?

DJ: My dad and his friend.

….

Warrington: You said they were arguing. Do you know what they were arguing about?

DJ: Bail, and what time they would get out.

Warrington: Bail? Okay, so what all happened after, or while they were arguing?

DJ: He told us to leave. And while we were leaving, he shot him.

Warrington: Do you know how many times he shot?

DJ: Three?

Warrington: Three? Did you see the gun?

DJ: No.

Warrington: You didn’t see it?

DJ: It was a pistol.

Warrington: It was a pistol? Did your dad have a gun or anything?

DJ: Nope.

Warrington: He didn’t? Okay. Where did this take place?

DJ: My dad was outside the house, and he was inside the house, and the door was open.

Warrington: The door was open?

DJ: That’s how he shot him.

….

Warrington: Ya’ll had, okay. What did you do when you heard the shot?

DJ: Went to see if my dad was okay.

Warrington: Was he okay?

DJ: No.

Warrington: What was wrong with him?

DJ: He was shot in the limb.

Warrington: Can you tell me where exactly he got shot at?

DJ: Hmmm-

Jessica: [unintelligible]

DJ: - In his back.

….

Warrington: So what did your dad’s friend do after he shot your dad?

DJ: He left.

Warrington: He left? Did he lock the house or anything?

DJ: No.

Warrington: Did anybody else lock the house?

DJ: ….

Warrington: Did he ‘walk or did he run?

DJ: He ran.

¶8. Warrington testified that the house was locked when he arrived, and he obtained a warrant to enter the home. Warrington took pictures of the inside of the home and the porch, all of which were entered into evidence. These photographs show the front porch with a large amount of blood next to the doorway and the porch stairs. Warrington said that this reflected where Thomas was shot, where he fell, and where he lay down after being shot. Warrington also took photographs of a couch with bullet holes in it. While inspecting the couch for projectiles, Warrington said he found a 9-millimeter Ruger pistol under the couch. The pistol was fully loaded, meaning one bullet was in the chamber, and the magazine was full. Warrington testified that based on the full magazine and chamber, this pistol had not been shot. Warrington also found five .45-caliber bullet casings on the stove and near the fridge. In one of the bedrooms, Warrington also found a gun box that had two unloaded magazines and a hand-grip, which he claimed was for the 9-millimeter Ruger based on the fact that the box said Ruger on it. A photograph of this gun box was produced and submitted into evidence, but the gun box itself was never collected from the crime scene. Warrington testified that the 9-millimeter Ruger was the only gun found at the scene of the shooting. All this evidence was logged and submitted to the Mississippi Forensics Laboratory.

¶9. Regarding the 9-millimeter, Warrington testified that it would not have been possible for the gun to have been thrown under the couch due to its being "a hard to reach location." Warrington also testified that he found no 9-millimeter shell casings or projectiles. Based on the location of the .45-caliber casings, Warrington stated that he believed the shooter had been in the kitchen area. Based on the direction of the .45-caliber projectiles, Warrington stated that he believed the shooter was shooting from inside the home toward the front door of the home. There were no holes that suggested any bullets were shot from the front door into the home.

¶10. Warrington stated that when Littleton turned himself in, he was accompanied by his attorney. After Littleton had been informed of his Miranda rights, according to Warrington Littleton told him that he wanted to speak to him. Warrington advised Littleton that he (Warrington) had to set up an interview through his attorney. Despite this warning, Warrington said that Littleton told him, "F-that. I jumped the gun." At this point, Warrington told Littleton to "shut up and be quiet" because he did not want to get in trouble for violating someone’s constitutional rights.

¶11. Lastly, Warrington stated that based on his investigation and the evidence he collected, he was of the opinion that Littleton shot Thomas in the back as Thomas was exiting Littleton’s house.

¶12. On cross-examination, Warrington clarified that they had issues scheduling interviews at the CAC, and sometimes months would pass after the crime before an interview. This delay, in combination with DJ’s request that Warrington conduct the interview, is why law enforcement did not send DJ to the CAC. Warrington said that he did not consider his questioning of DJ to have been leading; rather, he maintained only ever asking DJ questions and confirming his answers. Warrington said that while parents normally do not ask the child questions during interviews, Jessica’s assistance did not interfere with the interview.

Veronica Cathey

¶13. Cathey was Littleton’s neighbor at the time of the shooting. She is also Littleton’s cousin. Cathey stated that she was having drinks with a friend at her home when she heard a knock on her door. When she answered, it was Littleton. Littleton told her someone had been shot on his porch. Cathey said she did not believe him and thought it was a joke, so she went to check. When she went outside, she saw Littleton flag someone...