McClung v. State

294 So.3d 1216

James MCCLUNG a/k/a James Earl McClung Jr., Appellant

v.STATE of Mississippi, Appellee

NO. 2017-KA-01053-COA

Court of Appeals of Mississippi.

December 3, 2019

Rehearing Denied April 28, 2020

ATTORNEYS FOR APPELLANT: MERRIDA COXWELL, CHARLES R. MULLINS, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson

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

CARLTON, P.J., FOR THE COURT:

¶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...