Buchanan v. State
SEDRICK BUCHANAN AND ARMAND JONES A/K/A ARMOND JONES A/K/A A.J. JONES APPELLANTS
LEFLORE COUNTY CIRCUIT COURT HON. W. ASHLEY HINES TRIAL JUDGE
ATTORNEYS FOR APPELLANTS DANIEL HINCHCLIFF KEVIN HORAN BRADLEY D. DAIGNEAULT
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
BEFORE BARNES, C.J., CARLTON, P.J., AND C. WILSON, 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, 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.
¶2. 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.
¶3. 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.[1] Jones and Buchanan appeal. Finding no error, we affirm Buchanan's and Jones's convictions and sentences.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶4. 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.[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.
¶5. 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.
¶6. 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.
¶7. 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 97-3-19(1)(a).
¶8. 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.
¶9. 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.
¶10. 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.
¶11. 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.
¶12. 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.
¶13. 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 investigator.
¶14. 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.
¶15. 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.
¶16. 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.
¶17. 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 it.
¶18. 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.
¶19. 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.
¶20. 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.
¶21. 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.
¶22. 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.
¶23. 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.
¶24. 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.
¶25. On cross-examination, Cage confirmed that she knew Buchanan and that she did not see him in the vehicle that night.
¶26. 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.
¶27. 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 the head.
¶28. On cross-examination, Stigler confirmed that he did not see Buchanan in the vehicle that night.
¶29. 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.[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 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 the Tahoe.
¶30. 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.[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.
¶31. 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.[5] 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.
¶32. 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.
¶33. 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."
¶34. 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.[6] 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.
¶35. 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.
¶36. 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.
¶37. 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.[7]
¶38. 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 evidence.
¶39. 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.
I. Admissibility of Keys's Statement Against Buchanan and Jones[8]
A. The Confrontation Clause and Exceptions to the Rule Against Hearsay
¶40. 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[9] and Article 3, Section 26 of the Mississippi Constitution,[10] which both provide a defendant the right to confront a witness against him. McClung also asserted that the statement was inadmissible hearsay.[11] 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.
¶41. 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 Confrontation Clause.[12]
¶42. 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.
¶43. 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.
¶44. 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.
¶45. 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 admissibility hearing.
¶46. 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.
¶47. 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).[13] We address the trial court's rulings below.
¶48. 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).
¶49. 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.
¶50. 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 case).
¶51. 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.
¶52. 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.[14]
¶53. 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).
1. Buchanan
¶54. 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.
¶55. 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.
¶56. 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.").
¶57. 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.
¶58. 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.
¶59. 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 ...