IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-01053-COA JAMES McCLUNG A/K/A JAMES EARL McCLUNG JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/15/2017 TRIAL JUDGE: HON. W . ASHLEY HINES COURT FROM W HICH APPEALED LEFLORE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MERRIDA COXW E LL CHARLES R. MULLINS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: W ILLIE DEW A YNE RICHARDSON NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED12/03/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., CARLTON, P.J., AND C. WILSON, J. CARLTON, P.J., FOR THE COURT: ¶1. A shooting occurred on Highway 82 W est outside of I tta Bena, Mississippi, late on

a Saturday evening in August 2015. A group of m en in a light-colored Tahoe pulled up next
to a red P ontiac, and one or m ore o f the m en began shooting as both vehicles were traveling

west on H ighway 82. Shortly af t e r t he shooting, Jacarius Key s, accom panied by counsel,
gave a s tatem ent to the chief investigator on the case. In his statem e n t, Key s said that he was driving the Tahoe, and he a lso im plicated f our other m e n , as f

ollows: Jam es E arl McClung Jr., S e d r i c k B u c h anan, Michael Holland, and A rm a nd Jones. In July 2016, all f ive m en,Key s, McClung, Buchanan, Holland, and Jones, were co-indicted f or the m urder of one m an in the red P ontiac and f

or the attem

pted m urders of the three other m en in the Pontiac. Key s

was killed on Decem

ber 2 8 , 2016—a y e ar and a h alf af t er t he shooting and f

r om when Key s gave his statem ent, and approxim ately f i ve m onths af

ter the joint indictm ent was returned. The r em aining f

our c o-indictees were subsequently tried together in the Lef lore County Cir c u i t Court in May 2017. Key s’s v ideotaped statem ent was adm itted into e vidence and play ed at the def

e ndants’ trial. ¶2. This appeal concerns only McClung. Af ter a f our-day trial, the jury f

ound McClung guilty of three counts of the lesser-included of f ense of aggravated assault. H e was sentenced

to s erve three consecutive t erm s of twenty y ears in the custody of the Mississippi D epartm ent of Correc t i o n s (MDOC). McClung a ppeals. 1 Concluding that McClung’s conf rontation rights were violated in this case when Key s ’s statem e nt was adm i tted into evidence against McCl u n g ’ s o bjections, and that t he trial court abused its discretion when it denied M cClung’s

m otion f o r severance, we reverse McClung’ s c o n v i c tions and sentences a nd rem and f or a new trial.
STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶3. T h e r e c o r d r e f

l e c t s t h a t D ’ A l a n d i s L o v e , Perez Love, Kelsey Jennings , a n d Ken-Norri s S t i gler were t raveling west on Highway 82 about 11:00 p .m . on August 15,

1 T h e o th er th r ee d ef

e n d a n ts w ere a lso f

o u n d g u ilty an d ap p e aled th e ir co n v ictio n s an d sen ten ces. T h e ap p eals f iled b y M cC lu n g , B u ch an an , an d Jo n es w e re in itially d o ck eted b y th e M ississip p i S u p rem e C o u rt C lerk u n d er o n e d o ck et n u m b er, 2 0 1 7

- K A -0 1 0 5 3

. T h is C o u rt su b seq u en tly en tered a n o r d er assig n i n g B u c h an an ’s an d Jo n es’s ap p eals to a sep arate d o ck et n u m

b er, 2 0 1 7 -K A -1 0 8 2 -C O A

. H o llan d ’s ap p eal is p en d in g in th is C o u rt u n d er d o ck et n u m

b er 2 0 1 8 -K A -0 0 8 7 2

- C O A

. 22015. 2 They were in “Munchie” Brown’s red Pontiac a nd were going to a club in Itta Bena

called the Moroccan Lounge. As they were driving, a light-colored Tahoe sped past them , spray ing bullets as it went by

. D’ A l a n d i s L o v e was killed, and Perez Love, Jennings, and Stigler were seriously

injured. ¶4. Shortly a f

t e r t h e shooting, Key s, accom panied by his lawy er, went to the Lef lore
Cou n t y S h e r i f

f ’ s Of f ice in order to give a statem ent. He was interviewed by the chief
i n v e s t i g a tor on the c ase, Bill S taten, on Septem ber 2, 2015. W hen Investigator Staten learned the video e quipm ent had f ailed during that interview, h e re-interviewed Key s, with his lawy er present, on Septem ber 3. ¶5. In his interview, Key s said that he was driving the T a h o e , a n d h e a l s o provided
inf orm ation that im

p licated McClung, a s well as Buchanan, Jones, and Holland. Af ter Key s
gave h is incrim inating statem ent to law enf orcem ent, he went to Attorney Kevin Horan, who represented Jones at trial, and told him that he had d one so. To a void repetition, the details of Key s’s statem ent are addressed below. ¶6. In July 2 016, the Grand Jury of Lef l o r e C o u n t y i n d i c t e d J ones, Key s, Holland, Buchanan, a n d M c C l u n g f or “ acting alone or in concert with each other or o thers” on one
count of deliberate-des i g n mu r d e r of D’Alandis Love i n v iolation o f M ississippi Code Annotated section 97-3-19(1)(a) ( Rev. 2 014); one count of attem pted m u rder of Perez Love i n v i o l a tion of Mississippi C ode Annotated section 97-1-7 (Rev. 2014) a n d secti o n 97-3-19(1)(a); one c ount of attem pted m urder of Jennings i n violation of Mississippi Code

2 K elsey J en n in g s an d K en - N o rris S t ig ler w ere D ’A l an d i s an d P erez L o v e’s co u sin s. F o r ease o f ref

eren c e w e w ill so m etim es co llectiv ely ref er to a l l f o u r m en as th e L o v es. 3Annotated sections 97-1-7 and 97-3-19(1)(a); a nd one count of a ttem p ted m urder of Stigler in violation of

Mississippi Code Annotated sections 97-1-7 and 97-3-19(1)(a). ¶7. On Decem

ber 28, 2016, a y ear and a half af ter the shooting and when Key s gave his

statem ent, and approx i ma t e ly f ive m onths af

ter Jones, Key s, Holland, Buchanan, and McClung were indicted, Key s was killed. The details o f Key s’s m u r d e r w i l l be addressed below in the Court’s discussion of McClung’s Conf

rontation Clause assignm ent of error. ¶8. McClung, H olland, Buchanan, and Jones were t ried together bef ore a jury in Lef

l ore County Circuit Court. Each def

endant was represented by his own lawy e r . ¶9. Bef

ore trial all of the def

endants m oved to exclude Key s’s videotaped statem ent. The trial court denied the def

e ndants’ m otions. The trial court’s ruling will be discussed below when the Court a ddresses McClung’s Conf rontation Clause assignm ent of error. Af ter the trial court d enied def

endants’ m otions to e xclude K e y s ’ s videotaped statem ent, each def endant m oved pre-trial t o sever his case f rom the others. The trial court also denied those

m otions. ¶10. Trial began on May 16, 2 017. The State’s w itness, M atthew B rown, a d e p u t y w i t h

t h e L ef lore County Sherif

f ’s Of f i ce, testif ied t hat he was on regular patrol on the n i g h t o f August 15, 2015, and spotted a f ire in a f ield of f of Highway 82. Deputy Brown pulled over and approached the scene. He testif ied that he could see that one p erson was already out of the vehicle, b ut others were still inside, with one person try ing t o clim b out o f the car through the dri v e r ’ s -side window. Deputy Brown testif ied that there were no by standers or other of f icers a t the scene. Jennings w a s i d e n t i f ied a s the person outside the vehicle. Deputy

4Brown h e l p e d P e r e z L ove get out of the car through the window and then pulled two

unconscious m en out of the backseat, Stigler and D’Alandis Love. D ’Alandis Love was later pronounced dead at the scene. Deputy Brown testif ied that he radioed f

or m edical help and the f ire d epartm ent. H e also testif ied that once he realized that it was “not just a car wreck,” he called in f

or the sherif

f and the investigator. ¶11. Bill Staten, an investigator with the L ef lore County Sherif

f ’s O f f ice, t estif ied that he responded to the scene at approxim ately 1 2:20 a.m . He testif ied that af

ter he p a r ked his vehicle, he walked to the scene and approached a sm oldering vehicle, which he identif ied as a red Pontiac resting nose up in a deep drainage d itch. Investigator Staten testif ied that he looked at D’Alandis’s body and observed what he believed w ere gunshot wounds. The other three victim s had already been transported to the h ospital. Investigator Staten a lso testif ied that he e xam ined the red Ponti a c a n d f o u nd that the rear-passenger window had been shot

out and that there were bullet h o les along that side o f the v ehicle. He t ook photographs and col lected evidence, including a num ber of 7.62 m m shell casings and one . 4 0-caliber shell casing. These item s were recovered within the i m m ediate a rea of where t h e v e h i c l e had traveled on (and lef

t) the highway

. ¶12. W h en Investigator S taten was r e-called as a witness later in the trial, h e testif ied that he retrieved a pistol f

rom t he red P ontiac the next m orning af ter they had t he vehicle towed

to a secure location t o let it cool o f f

. Mark Steed, an investigator with the Mississippi Bureau of Investigation (MBI) als o t e stif ied f or the State, explaining t hat he assisted with the investigation and helped collect evidence. Investigator Steed also identif ied the handgun at

5trial that Investigator Staten recovered f rom the red Pontiac. ¶13. Investigator Staten f urther testif

ied that Jasm ine Cage was at the scene and told one of the deputies that she knew the people in the car a nd had witnessed the s hooting. One of

t h e d eputies placed Cage in a patrol car t o isolate her while Investigator Staten f inished processing the s cene. Investigator Staten testif ied t h a t h e then had h er t ransported to the sherif f ’s of f ice so that he could take her statem e nt. ¶14. Af ter Investigator S taten processed the scene, h e t e s t i f i e d t h at he had the Loves’ vehicle sent to a secure location to be processed as well. The State’s witness, Am ber Conn,

a crim e s cene analy s t with the MBI, was accepted as an expert in crim e scene investigation. She testif ied that she had e xam ined the red Pontiac, a nd she opined that t he c a r w as shot f rom the b ack toward the f

r ont. During her investigation of the v ictim s’ vehicle, Conn recovered another h andgun. This weapon was recovered f r om the f ront-passenger f

loorboard that was identif i e d as a .40-caliber Sm i th & W esson pistol. Conn testif ied that it w as f

ully loaded (one bullet was in the cham ber) and that its saf

ety was locked when she f

ound it. ¶15. Lisa F unte, a m e dical e xam iner f or the State, testif

ied that D’Alandis Love, who had been seated in the back o f t h e r e d Pontiac on the driver’s side, died as a r esult of m ultiple gunshot wounds. His m a nner of death was hom i cide. ¶16. The State’s w itness, Starks Hathcock, was accepted as an e x pert in f irearm s and toolm arks identif

i c ation. Hathcock testif

ied that h e exam ined both

. 40-caliber pistols that were recovered f

rom the red Po n t i a c and com pared them to the .40-caliber b ullet that was recovered f

rom Perez Love’s head. He was able to conf irm that this bullet was n ot f ired by

6either o f the two guns recovered f rom t he red Pontiac. Hathcock also testif i ed that the 7.62

m m shell casings t hat were recovered f rom the highway could have b e e n f ired f rom an AK-47 or SKS—som e sort o f sem iautom atic a ssault rif le, which, he explained, is a weapon designed f

or war. As ad d r e s s e d i n m ore detail b elow, one of the surviving victim s, Perez Love, testif

ied that h e saw Jones in the T ahoe with a “baby assault rif le.” H athcock testif

ied, however, that he could not com par e t h e 7

. 62 m

m shell casings that were recovered to a specif ic weapon because Jones’s AK-47 was never recovered. Hathcock did t estif y that the projectile jackets that were recovered f r o m the red Pontiac b ore sim ilar characteristics to the bullet that was recovered f rom D ’ A l a n d i s Love’s right chest and the bullet that was recovered f

r om his right leg. ¶17. A n u m

ber of l ay witnesses were also called by the State. Bentravious “ M u n c h i e ”
Brown testif

ied t hat on the night of the incident he had loaned his red Pontiac Grand Prix to Perez Love, Stigler, J ennings, and D’Alandis Love. He testif ied that Perez Love drove the vehicle, and the group headed to a club at around 11:00 p.m . Brown testif ied that he did not know which club they

were going to. ¶18. Jasm ine Cage, who was Perez Love’s girlf r iend at the t im e of

the incident, testif

ied that on the night of the shooting, she f ollowed P erez and the others in Brown’s car to “m ake

sure Perez was not going to the club.” Cage testif ied that she saw the red P ontiac that Perez and the others were in on Highway 82 ahead of her; af ter she saw the red Pontiac, she saw

a T ahoe or Yukon, and it passed her on her right side. Cage initially t estif ied that she could not see who was in the Tahoe/Yukon and did not know the color of the vehicle. W hen the

7prosecutor rem inded Cage about the statem ent she had given to Investigator Staten shortly

af ter the incident, she then testif ied that she h ad told Investigator Staten that she thought the vehicle was gold and that s h e saw Key s, David Reedy , Jones, and Holland in t h e v e h i c l e . She testif ied that she thought Jones was i n t he f ront passenger seat a nd Holland was seated
in t he back on the passenger side. Cage also testif ied that w hen s he t alked to Investigator
Staten af ter t he incident, she told him that Reedy h ad been driving the Tahoe/Yukon and that Key s was in the backseat on the driver’s side. ¶19. Cage testif

ied that af ter the Yukon passed her, she s aw “sparks like f ire” a f ar distance
in f ront of her. Cag e c a l l e d P e r e z ’ s f riend to ask him w hether gunf ire looks like f

ire at nightti me , a nd he said it did. Cage testif ied that she then drove straight to the Moroccan Lounge. S he testif

ied that when she did not see the red Pontiac at the club, s he t urned around and headed back to Greenwood. On her way back, she testif i ed that she saw the red Pontiac

on f ire in the f

i e l d

. S h e s t o pped her car, got out, and approached the scene. She began
cry ing because she knew Perez was in the vehicle. ¶20. On cross-exam ination, Cage testif ied that she knew McClung and that she did not see him in the vehicle that night. ¶21. Two of the surviving vi c t i ms o f t h e shooting, S tigler a n d Perez Love, testif ied that
Jones and Holland had been t h e ones who f i red 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 , t estif ied that he knew that a vehicle h ad pulled up beside them and

som eone o pened f

ire on them in the red Pontiac, but h e c ould not i dentif y either the vehicle

8or any o ne in it.

¶22. Stigler and Perez both testif ied that t he shoot e r s w e r e t raveling in a beige or gold Tahoe-ty pe vehicle. P erez testif

ied t h a t h e s aw def

endant Jones in the Tahoe with a “baby assault rif le.” He explained that i t was som etim es called “a m ini-Draco.” Stigler testif ied that he s aw Holland shooting a pistol f rom the vehicle, a nd Perez a l s o s a i d that he saw Holland with a p i stol through the window of the Tahoe as the T ahoe passed them

. Stigler also testif i ed tha t h e s a w J ones shoot Perez in the top of the head. On cross-exam ination, both Stigler and Perez testif i ed that they

did not see McClung in the vehicle that night. ¶23. P e r e z t estif

ied a t trial that he could not positively identif y any one in th e v e h i c l e b e s i d e s H olland and Jones. He adm itted, however, that h e had given a statem ent af ter th e incident while he was hospitalized and identif ied other people, including Reedy and Key s, in the vehicle. 3 P erez testif ied that he identif

ied the p eople i n 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 testim ony P erez said that af ter h e t hought about it m ore, he realized that he never really saw any one except Jones and Holland. On cross-exam ination, P erez also testif ied that he thought Reedy

was in the Tahoe that night because Reedy used to own the Tahoe. ¶24. As noted above, Key s gave a videotaped statem e nt to Investigator Staten a f ew weeks af ter the incident. He was indicted along w ith McClung, Buchanan, J ones, and H olland, but

3 In v estig ato r S taten testif ied t h a t h e th o u g h t P erez h ad id en tif i ed B u ch an an , b u t In v estig ato r S ta t e n w a s n o t su re. D ef en se co u n sel sp ecif

ically q u estio n ed P erez ab o u t w h eth er h e h ad id en tif

ied B u c h an an , b u t at trial P erez said h e n ev er s aw B u ch an an an d , o th er th an Jo n es an d H o llan d , h e co u ld n o t recall w h o h e h ad p rev io u sly id en t if ied

. 9Key s was not available a t trial b ecause he had been k illed m onths earlier. 4 Key s’s videotaped

statem ent was adm i tted into evidence as the State’s e x hibit S -6 a nd was play ed f or the jury

. It was not transcribed. ¶25. In his statem ent, Key s s a i d that he was driving the gold Tahoe on t he night of the shooting. He said that Holland and Jones were o n the passenger side, McClung was in the

rear seat of the driver’s side, and Buchanan was sitting i n the third-row seat. 5 According to Key s, he, Holland, Jones, Buchanan, and McClung h ad been at Holland’s house on the night of the s hooting. Around 11:00 p.m ., they all got in Key s ’s car to go t o the Moroccan Lounge in Itta Bena. ¶26. Key s said that Jone s b r o u ght his AK-47 with him , which Key s described as being “short with a long m agazine.” Key s said he did not know that Jones had it with him when they got in his c ar. He s a i d t h a t h e d i d n ot know Jones had it until “he f irst upped it” (m eanin g u n t i l Jones began shooting i t later than n ight). Key s a lso said a t the end of his

statem ent that Jones had the AK-47 that night because “he alway s had it.” Although at one point in his statem ent Key s said t hat he was unsure whether any one e l se h ad a weapon, at the end of his statem ent, Key s said that no one had a gun except Jones. ¶27. Key s said t hat there had not been any previous discussion am ong the group o f gunning down the Loves or of retaliation against them

. However, w h en questioned specif ically about

4 T h e j u ry w as n o t to ld th a t K ey s h ad b een k illed

. 5 In co m p ariso n , C ag e an d P erez id en tif ied R eed y as th e p erso n d r iv in g th e v eh icle w h ile K e y s w as in th e b ack s eat. In h i s statem en t, K ey s said th at h e w as d riv in g an d R eed y w a s n o t w ith th e m . 1 0Jones, K ey s said that Jones had said “day s e a r l i e r ” t h a t he needed to get o ne of them (the

Loves) because they

(the Loves) “had got som e of their f riends.” ¶28. Key s 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 Key s, Jones rolled down the w indow, l e aned o ut the window, and opened f i re w ith his AK. K ey s s aid that, as soon as Jones started shooting, Jones said, “Go, go, go,” and Key s sped up to get away

. ¶29. As they drove away , K ey s said that Holland m ade a call to s om eone to get rid of the

car because of the shooting. Key s said that there was no discussion about t his until af ter Holland got of

f of t he phone, and then Holland said that t h e y n e e d e d t o g e t rid of the car. Key s said he drove to Moorhead, Mississippi, and a m e chanic that Holland knew m et t hem in a grey Nissan. The m echanic took Key s’s Tahoe, and Key s, Jones, Holland, Buchanan, and McClung drove o f

f in the Nissan. Key s said that the m echan i c w a s g o i n g t o store his Tahoe at his shop. At the tim e of trial, the Tahoe had not been recovered. ¶30. Key s said that af t er they switched c a r s , t h e y w e n t t o a B e s t W estern hotel in Greenwood. W hen asked who got the room , K e y s responded, “McClung.” K ey s did not state whether McClung had already gotten the r oom

or got it when they

arrived at the Best
We s t e r n . K e y s said that when they g ot to the hotel, J ones b rought his gun in with him

.

6 K e y s s a i d t h at h e d id n o t reco g n ize th e c ar. P erez, h o w ev er, said in h is p retrial statem en t th at K ey s w as stan d in g o u tsid e b ef o re P erez an d t h e o t h ers h ad lef t f o r th e c l u b

. Wh en q u estio n ed ab o u t th at statem en t at trial, P e r ez t estif ied th at h is s t atem en t w a s w ro n g . H e said th at h e m ean t to say th at it w as “M u n ch ie” (B en trav iu s B ro w n ), stan d in g o u tsid e, n o t K ey s . 1 1Later, Holland and J ones lef t t ogether. According to Key s, Jones returned at around 3:00 or 4:00 a.m ., and w hen he return e d , h e n o l o nger had his g un. Key s said that he, Jones, Buchanan, a nd McClung spent the night at the Best W estern. The n ext m orning, Jones arranged f

or his own r ide hom e, and Key s, McClung, and Buchanan got a ride together. Key s

was dropped of

f f irst. Key s said that he stay ed with his m other f o r several d a y s a f

t er the shooting until he got a lawy er and turned him s elf i n. W hile he was at his m other’s hom e in Tennessee, K ey s s aid that J ones contacted him f rom a phone K ey s d id not r ecognize and told
him that h e was in Chicago. A t the tim e Key s gave his statem ent on Septem ber 3, 2 015, Key s had not spoken w ith a ny one else w ho had b een involved in the incident. However, as noted above, af ter Key s gave his statem ent to l aw enf orcem ent, Key s approached Jones’s lawy er and told the lawy e r that he had given an incrim inating statem e nt. ¶31. Investigator Staten testif ied that he h ad independently verif ied that McClung rented the room at the Best W estern o n the d ate of the shooting. On cross-exam ination, however, Investigator Staten adm i tted that he ha d n o evidence that Key s, McClung, Buchanan, Holland, and Jones were at the Best W e stern together af ter the incident, other than Key s’s

statem ent. He testif

ied that he “ could not conclude or rule out where they re-entered that

room that night or that m orning at all.” Investigator Staten adm itted that he was only able to obtain video f

rom the Best W estern of McClung when he registered f or the room and when he entered and lef

t the r oom . No one else was on t he video and there was no testim ony about what tim e McClung registered and entered and lef t the room

. ¶32. Buchanan t

urned h im self in on Septem ber 18, 2015, and H olland was arrested shortly

1 2af

ter the incident. Although David Reedy was a suspect who was arrested and jailed f or these crim es, the Grand Jury did not indict him

. 7 ¶33. The State r ested, and M c C lung, Jones, Buchanan, and Holland m oved f or directed verdicts, which the trial court denied. No def e ndant testif

ied or presented any other testim o ny or evidence. ¶34. Af ter c ons i d e r i n g the evidence and the instructions that were given, the jury f ound each of the def

endants guilty of various of f enses. Relevant t o this appeal, the jury acquitted McClung on C ount I (deliberate-design m urder of D’Alandis Love) and f ound McClung guilty of aggravated assault w ith respect to Perez Love, Jennings, and Stigler. The trial court sentenced McClung to serve three consecu t i v e t e r m s of twenty y ears f or each aggravatedassault conviction and ordered McClung to pay court costs and f ees. McClung f

iled a m otion
f or judgm ent notwithstan d i n g t h e v e r dict and f or a n ew trial, which the trial court denied. McClung appealed.
DISCUSSION
I. Adm issibility of Key s ’s Statem e nt Against McClung
A. The Confrontation Clause and Ex c eptions t o t h e Rule Against Hearsay . ¶35. McClung asserts that the trial court erred in allowing Key s’s s t atem ent into evidence against h im because it violated McClung’s r ight to conf ront the witness a s guaranteed by the

7 T h e reco rd ref

l ects th at s u rv eillan ce f

o o tag e w a s reco v ered d u r in g th e in v estig atio n th at ap p eared to sh o w R eed y a t a B atesv ille g as statio n f o rty m in u tes p rio r to th e in cid en t. 1 3Sixth Am endm ent of the United States Constitution 8 and Art i c l e 3 , Section 26 of the

Mississippi Constitution, 9 which both provide a d e f e n d a nt the right to conf

ront a witness against h i m. M cClung also asserted that the statem ent was inadm issible hearsay

. 10 In general, the standard of r e v i e w “regarding adm ission or exclusion of evidence is abuse of discretion.” Jenkins v. State , 102 So. 3d 1063, 1065 (¶7) ( Miss. 2012). However, we review

a C onf rontation Clause objection de novo. S mith v. State , 986 So. 2d 290, 296 (¶18) (Miss. 2008). For the reasons a ddressed below, we f ind that the trial c ourt erred in allowing Key s’s

s t a t e me nt against McClung to be adm itted at trial, and we r everse and rem and McClung’ s convictions and sentences f or a new trial on this basis. ¶36. Bef

ore trial, McClung and the other def endants m oved to exclude Key s’s statem ent given to Investigator Staten based upon Sixth Am endm ent and hearsay grounds. The State argued in response t hat Key s’s statem e nt was adm issible against each def e n dant u nder Rule 804(b)(3) (the statem e nt-against-interest exception) and the e x ception under Rule 804(b)(5) (the catch-all exception) of t he Mississippi Rules of E vidence. T he S tate also a r g ued that Key s’s statem ent was adm issible u nder the f orf e iture-by -wrongdoing t heory as em bodied in Rule 804(b)(6) and caselaw recognizing a sim ilar exception u nder the Conf rontation

8 “In all crim in al p ro secu tio n s, th e accu sed sh a ll e n j o y th e rig h t

. . . to b e co n f ro n ted w i th th e w itn esses ag ain st h im . . . .” U .S . C o n st. am en d . V I.

9 “In all crim in al p ro secu tio n s , th e accu sed sh a l l en j o y th e rig h t

. . . to b e co n f ro n ted w i th th e w itn esses ag ain st h im . . . .” M i ss. C o n st. art. 3 , § 2 6

.

10 H earsay , as d ef

in e d in M ississip p i R u l e o f E v id en ce 8 0 1 , is in ad m issib l e u n less th e law p ro v id es o th erw ise, i n clu d in g th e ex cep tio n s i n M ississip p i R u le o f E v i d en ce R u le 8 0 4

. S ee M .R .E . 8 0 2

. 1 4Clause. 11

¶37. A t t h e a d m i ssibility hearing, the def endants presented one witness, Attorney Kevin Horan, who represented Jones at trial. He testif ied that K ey s had com e to his of f ice, told h im he was out on bond, and that Key s had told him “ the only reason he gav e a statem ent was because h e got a lower bond.” H o r a n t e s t if ied that at that point, he s topped Key s im m ediately and told him if was going to “change his story ” then h e needed to do it through counsel. H oran testif

ied that Key s did not “tell m e what he said o r a ny thing.” According to Horan, Key s just “m ade som e other com m ents and then h e l ef t.” H oran di d n o t t estif

y whether he told any one else a bout Key s’s visit to h is of f ice. However, the r e c o rd ref lects

t hat Key s’s statem ent was provided to all the co-def endants through discovery a t t h e beginning of

the case. ¶38. The State presented two witnesses. The f irst witnes s t h e State called was Sergeant Jeri Bankston, a detective with the Greenwood Police D e p a r t m e n t , w h o i nvestigated the Key s shooting that o ccurred o n Decem ber 28, 2016. She obtained the video-surveillance f ootage f rom the Chevron Station near where the shooting occurred. T h e video-cam era f ootage was play ed a t t he hearing. The f ootage showed K e y s running across the Chevron parking lot with Holland running behind him

. B u c h a n a n and other m en, including Anthony Flowers, Ladarius L em ock, and Danarius Jackson, w ere in the parking l ot a t the sam e t im e. The
f ootage also showed Holland with a gu n i n h i s h a n d. Sergeant B ankston t estif ied that she developed f

ive su s p e c t s i n the Key s c ase: Holland, Buchanan, Lem o ck, Jackson, and

11 S ee D a vis v. Wa sh in g to n , 5 4 7 U .S

. 8 1 3 , 8 3 3 (2 0 0 6 ); C ra w fo rd v. W a sh in g to n , 5 4 1 U

. S . 3 6 , 6 2 (2 0 0 4 ). 1 5Flowers.

¶39. On cross-exam ination, Sergeant Bankston a d mi t t e d t h a t s h e had no evidence of McClung being involved in Key s’s m urder and that he was not at the scene of t h e parking lot. She also conf

i rm ed that Jones was i n jail a t the tim e of Key s’s death. Sergeant Bankston testif i ed that Buchanan was arrested on Decem ber 29, 2016, f

or Ke y s’s shooting and that Holland r eceived a text m essage f rom B uchanan when B uchanan was in jail. The caller-ID showed the text m essage was f rom “A.J.,” whom she believed was A rm a nd J ones. She said that the text m essage said som ething to the ef f ect of “Hey , this is Sed.” S he did not recall what was in the rest of the text m essage. Sergeant Bankston c onf irm ed t hat Jones and Buchanan were in jail at the sam e tim e when the text m essage was sent. ¶40. The State’s second witness was Investigator Staten, t he chief investigator in the L ove shooting case. H e testif

ied that s hortly af

ter t he A u gust 15, 2015 sho o t i ng, Key s, with his lawy er, cam e to the Lef

lore County Sheri f

f ’ s O f f ice and said that he wanted to give a
statem ent. Investigator Staten was calle d i n t o take t he statem ent. He testif ied that he initially interviewed Key s, with his lawy er p resent, on Septem ber 2 , 2 015. Due t o equipm ent f ailure, however, Investigator Staten had to r e-interview Key s on Septem ber 3, 2015. Key s’s lawy er was a lso present a t that interview. The interview w as videotaped but not transcribed. The videotaped interview was play ed f or the trial court at the adm issibility hearing. ¶41. D u r i n g c r o s s - e x a mi n a t i o n , I n v e s t i g a tor Staten acknowledged that t h e r e w e r e inconsistencies in Key s’s statem ent as com pared to statem ents g i v e n b y o ther witnesses regarding the people in the Tahoe and where they were sitting.

1 6¶42. Af

ter argum ent of c ounsel, the trial court denied the def endants’ m o tions t o exclude Key s’s stat e m ent and expressed that it would enter a written order stating the reasons supporting its decision t o allow the videotaped interview to b e adm itted into e vidence at trial.
I n i t s w r i t t en order, the trial court concluded t hat Key s ’ s statem ent was adm issible under three exceptions to t he hearsay rule: Rule 804(b)(3) ( statem ent against a person’s interest); Rule 804(b)(5) (the catch-all hearsay exception); and Rule 804(b)(6) ( the f orf eiture-by

wrongdoing exception). 1 2 W e address the trial court’s rulings below. ¶43. Relevant evidence, as d ef ined in R ule 401, is generally adm issible subject to certain laws regarding exclusions a nd exceptions. See M.R.E. 402. R ules regarding hearsay address

concerns with a dm i t

ting evidence that, albeit relevant, is not suf f iciently reliable. See M.R.E.
801 & advisory com m ittee note. The Mississippi Suprem e C o u r t h a s recognized that

“ [ n] ontestimonial hearsay is subject t o evidentiary rules concerning re l iability rather than being subject t o s crutiny u nder the Conf rontation C l a

u s e . H o w e v er, t estimonial hearsay m ust be f iltered by the Conf

rontation Clause.” Smith , 9 86 S o. 2d a t 296-97 (¶ 2 0 ) ( em phasis added) (citing Crawford , 54 1 U

. S

. a t 36, 53)). Statem ents g iven in the course of a police interrogation are testim onial “when the c ircum s tances objectively indi c a t e t h at

. . . the prim ary purpose of the interrogation is to establish or prove past events potentially relevant

12 T h e trial co u rt p rim arily r elied u p o n U n ited S ta tes v. T

h o m p so n , 2 8 6 F .3 d 9 5 0 (7 th C i r. 2 0 0 2 ), in d eterm i n in g th at th e f o rf eitu re-b y -w r o n g d o in g ex cep tio n ap p lied

. T h e co u rt su m m a rized T

h o m p so n a s f

o llo w s : “A cco rd in g to t h e S e v en th C ircu it, th e w a iv er-b y -m isco n d u ct o f th e r ig h t to c o n f ro n t w itn e sses b y o n e co n s p irato r, resu l tin g f ro m m isco n d u ct b y t h a t co n sp irato r w h ich cau ses t h e w i tn ess’s u n av ailab ility , m ay b e im p u ted to an o th er c o n sp i rato r if th e m i sco n d u ct w as w ith i n th e sco p e an d in f u rth eran ce o f th e co n sp iracy , an d w as reaso n ab l y f o reseeab le to h im .” (C itin g T h o m p so n , 2 8 6 F .3 d at 9 6 5 )

. 1 7to later c rim inal prosecution.” Id. at 297 (¶21) (quoting Davis , 547 U.S. at 822). U nder this

test, we conclude that Key s’s statem ent was testim onial in that I n v e s t i gator Staten interrogated Key s to establish events concerning the shooting—events potentially relevant

to f u t ure crim inal prosecution. Accordingly , even if Key s’s statem e nt m e ets the evidentiary reliability rules set f

orth in Rule 804(b)(3) o r Rule 804(b)(5), these rules do not circum vent

a def endant’s rights under the C onf rontation C lause. Smith , 98 6 S o . 2 d a t 298 (¶26) (recognizing that “ Crawford holds that when d ealing w ith testim onial evidence, a f inding of reliability does not create an exception to the Conf rontation Clause”) ( citing C rawford , 541
U.S. at 61)); see Sanders v. State , 228 So. 3d 888, 891-92 (¶¶12-16) ( Miss. C t. App. 2017) (f i nding that the circuit court erred when i t a d mi t t e d w i tness’s testim onial s t atem ent in violation of the Conf

r ontation Clause of the Sixth Am endm ent; but f inding error harm less under the circum stances of that case). ¶44. A party , however, “who obtains the absence of a witness by wrongdoing f o rf eits the constitutional right to conf rontation.” Davis , 547 U.S. at 833; see also Crawford , 541 U.S.

a t 62 (“[ T ]he rule o f f

orf eiture by wrongdoing

. . . extinguishes conf r ontation c l a i ms o n essentially equitable grounds

. . . .”). Likewise, under Rule 804( b ) ( 6 ) , a p a r ty f orf eits his rights to object t o a prior testim onial statem ent on hearsay grounds if the party “wrongf ully caused—or acquiesced in wrongf ully causing—the declarant’s unavailability as a witness, and did so intending that result.” M.R.E. 804(b)(6) & advisory com m ittee note. ¶45. The t r i a l c o u r t i n t h i s c a s e f o u nd that Key s’s statem e nt w as adm issible against McClung under the f

orf eiture-by -wrongdoing doctrine as e m bodied in Rule 804(b)(6). Like

1 8the trial court, we f ind no M i ssissippi law interpreting M ississippi Rule 804(b)(6), and thus

we electively look f

or guidance f

r om f e deral cases analy

zing the i dentical language in Rule 804(b)(6) of

the Federal Rules of Evidence and r elated Conf rontation Clause principles. 13 ¶46. As recognized by the United States Suprem e Court, f ederal Rule 804(b)(6) codif ies the equitable doctrine of f o rf eiture by wrongdoing, Davis , 547 U.S. at 833, “which applies only when the def

endant engaged o r acquiesced in wrongdoing that w as intended to, and did,
procure the unavailability o f the declarant as a witness.” Giles v
. C alifornia , 554 U.S. 353,
367 (2008) (internal quotation m ark om itted). In order f or K ey s’s statem ent to be adm issible against McClung, the State, a s the p arty of f ering the evidence, was r equired to prove the f acts

m eeting these requirem ents a s to McClung by a preponderance of t he evidence. U nited States v. Gurrola , 898 F.3d 524, 534 (5th Cir. 2018). ¶47. As the Suprem e Court observed in Giles , “ [ e ]very com m entator we a re aware of has concluded the requirem ent of intent m eans that the exception applies only if the def endant has in m i nd the particular purpose of m ak i n g t h e w i t n ess unavailable.” Giles , 554 U.S. at 367 (internal quotation m ark om itted). The Fif th Circuit recognized th i s p r i n c i ple in Gurrola , as f

ollows: “In order f

or t he declarant’s statem ents to be adm issible, the wrongdoer

m ust ‘have in m ind the p articular p urpose of m a king the witness unavailable.’” Gurrola , 898 F.3d at 534 (quoting G iles , 5 54 U.S. at 367). Indeed, in discussing t he com m on-law
f orf eiture-by -wrongdoing doctrine, t he Giles Court recognized t hat “ [ t]he term s us e d to

1 3 “ I n i n t e r

p retin g th e M i ssissip p i R u les o f E v id en ce, it i s a p p ro p r iate to lo o k to f ed eral law in terp retin g th e F e d eral R u les o f E v id en ce f o r g u i d a n c e.” P o rtis v. S ta te , 2 4 5 S o . 3 d 4 5 7 , 4 7 0 (¶3 1 ) (M i ss. 2 0 1 8 ). 1 9def

ine the scope of the f

orf eiture rule suggest t hat the exception appl i e d o n l y when the def endant engaged in conduct designed to prevent the witness f rom testif y ing.” Giles , 554 U.S. at 359 (em

phasis om i tted). ¶48. Based upon o u r review of the record f rom the adm issibility h earing, we f ind that the
State p u t f

o rth n o e vidence a t t he hearing that showed that McClung “ ha[ d ] in m ind the particular purpose o f m aking [ Key s] unavailable.” Id. at 367. Sergeant B ankston, who was the i nvestigator on the Key s m urder case, testif

ied at the hearing that she had no evidence of McClung being involved in Key s’s m urder. He was not developed as a suspect. ¶49. Nor do we f

ind any evidence in the r ecor d t h a t M c C l u n g “acquiesced” in Key s’s

m urder. In United S

tates v. Marchesano , 67 M.J. 5 35, 543-45 (A. Ct. Crim

. App. 2008), the

court exam i ned the m eaning o f “acquiesced” in the f orf eiture-by -wrongdoing context. Although the court acknowledged that “tacit assent” or “tacit acceptance” could constitute “acquiescence, ” i t f

o u n d no e vidence that the def endant tacitly or otherwise procured his daughter’s a

bsence as a witness at his trial. Id. at 544-45. The court conclude d that the

m ilitary judge erred in determ i ning that the accused “acquiesced” in his wif e ’ s ref usal to honor a subpoena f

or their daughter’s c o u r t a p p earance where t he accused sim p ly lef t the decision whether to produce t heir daughter f or trial with h i s wif

e and m a de no attem

pt to inf luence her decision. I

d. at 545. W e likewise f

ind in this c ase t here i s n o e v i d e n c e that McClung tacitly

assented to or a ccepted any action on a n y one’s part to p revent Key s f rom testif y ing.
B. The Conspiratorial Responsibility Theory

2 0¶50. T h e State asserts that McClung is liable f or “acquiesci n g ” i n p r o c u r i n g K e y s ’ s unavailability under the conspiratorial responsibility theory announced i n the 2 000 decision of United States v. Cherry , 217 F.3d 8 11 (10th Cir. 2000). 14 For the reaso n s a ddressed below, we f

ind no m erit in this assertion. ¶51. Cherry involved f

i ve def e ndants charged with involvem ent in a drug conspiracy

. Id.

at 813. Much of

the State’s evidence was f rom a cooperating witness, Lurks. Id. Prior to trial, one of the a lleged drug co-conspirators, P rice, m urdered Lurks. I

d. The t rial court granted the other co-consp i r a t o r s ’ m o t i o n t o s u p p ress Lurks’s statem ent against t hem , f inding that there w as insuf

f icient evidence as to one def endant that she “procured Lurks’s a bsence”; and f inding as to the other three def endants that there was n o evidence that these def endants “had actual knowledge of , agreed to[ ,] or participated in [ Lurks’s] m urder.” Id. at 814. ¶52. In relevant part, the Tenth Circuit reversed and rema n d e d t o t h e district court f or f indings on the f

ollowing issue: “[ W ]as

. . . Price’s mu r d e r o f L u r k s w ithin the scope, in
f urtherance, and reasonably f oreseeable as a necessary or natural consequence, of a n ongoing drug distribution conspiracy involving the def endants? ” Id. at 822. E laborating on this issue, the Tenth Circuit held: [ T ]oday we h old t hat p articipation in an o ngoing drug conspiracy m ay constitute a waiver of constitutional c onf rontation r i g h ts if t he f

ollowing additional circum stances are present: the wrongdoing leadin g to the unavailability of the witness was in f urtherance of and within the scope of the

14 In p articu lar, th e S tate asserts th ere w as su f f icien t ev id en ce p r e s e n t e d at th e ad m issib ility h earin g to a llo w t h e trial co u rt to in f er t h a t H o llan d , w ith B u ch an an ’s assistan ce, k illed K ey s f

o r th e p u r p o se o f p rev en tin g h im f

ro m t estif y in g at trial, e.g ., su

p ra ¶3 8 (d iscu ssin g H o llan d an d B u ch an an ), an d t h at u n d er th e co n sp irato rial resp o n si b ility th eo r y M cC lu n g “acq u iesced ” in p ro cu rin g K ey s’s u n a v ailab i lity

. 2 1drug conspiracy , and such wrongdoing wa s reasonably f oreseeable as a “necessary or natural” consequence of the conspiracy

. Id. at 821 (em

phasis om itted). Th e Tenth Circuit also clarif ied t hat “the scope of the conspiracy is not necessarily l im ited to a prim ary goal—such a s bank r obbery

— but can also include secondary g oals relevant to the evasion of a pprehension and prosecution f or t ha t goal—such as escape, or, by analogy , obstruction of

justice.” Id. ¶53. In sum , with respect to t he drug conspiracy a t issue in that case, t he Cherry court held that “[ a] def

endant m ay be d eem ed to have waived his o r her Conf rontation C lause rights (and, a f ortiori, hearsay objections) if a preponderance of the evidence establishes [ that]

. . . the wrongf

ul p rocurem e nt was in f

urtherance, within the scope, and reasonably f oreseeable
as a necessary

or natural consequence of an ongoing conspiracy

. . . .” Id. at 820. ¶54. Two y ears later in Thompson , the Seventh C i r c u i t C o u r t o f Appeals addressed the Cherry c onspiratorial r esponsibility test and explicitly r ecognized the i m p ortance of the “reasonably f

oreseeable” f

actor. Thompson , 286 F.3d at 9 64-65. The court explained, “By lim iting coconspirator w aiver-by -m isconduct to those a cts that were reasonably f oreseeable

t o each individual def

endant, the rule captures only those conspirators that actually acquiesced either explicitly or im plicitly to the m isconduct.” Id. at 965. ¶55. Finally , in 2008, the Suprem e Court d ecided Giles , as we have discussed above, and

m ade c lear that in order t o apply the f or f e i t u r e - b y - wrongdoing doctrine there m ust be a showing of intent to prevent the witness f rom testif y ing. Giles , 554 U.S. a t 3 61-62. In United States v
. Dinkins , 691 F.3d 358, 385-86 (4th Cir. 2 012), t he Fourth C ircuit Court of Appeals addressed t he Cherry conspiratorial responsibility theory in the light of the Suprem e

2 2Court’s “intent” requirem ent under Giles

. I n t h i s regard, the Fourth Circuit held that in

apply ing the Cherry t est, which requires a determ ination that the wrongf ul procurem ent of

a witness m

ust be “in f

urtherance, within the scope , a n d r easonably f oreseeable as a
necessary or natural consequence of an ongoing conspiracy ,” Cherry , 217 F.3d at 820, the

court ’ s d ecision m

ust be s upported by evidence that t he def endant “‘engaged in conduct de s i g n e d t o prevent the w itness f rom testif y ing.’” Dinkins , 6 91 F.3d at 3 85 (em phasis in original) (quoting Giles , 554 U.S. at 359)). A s noted a bove, n o Mississippi appellate court has addressed this issue. ¶56. Apply ing these cases, and com paring McClung’s case with the f acts in Dinkins , we f i nd that the State did not dem onstrate that M cClung e n gaged in c onduct “design e d t o prevent [ Key s] f

r om t estif

y ing” or that Key s’s m

urder was reasonably f

oreseeable to McClung. A ccordingly , we f ind that the t rial c ourt erred in adm itting Key s ’s statem ent against McClung at trial. ¶57. In Dinkins , 691 F.3d at 385, the r ecord ref lected that Dinkins w as a m e mb e r o f a narcotics traf

f icking organization called “ Special.” D i nkins asserted that state m ents by Dowery , a governm ent inf orm ant killed bef

ore Dinkins’s trial, w ere wrongf ully used against
him at t rial b ecause Dinkins did not participate in Dowery ’s m urder—Dinkins w as in jail at the tim e. Id. at 383-84. ¶58. The c ourt f

ound no m erit in Dinkins’s argum ent, p ointing out that t he record showed that Dowery w as a known g o v e r n ment inf orm ant and that Dinkins and a co-conspirator,
W e st, had a ttem

pted to kill D owery in O ctober 2004, a bout a y ear b ef

ore Dowery was

2 3actually m

urdered. Id. at 385-86. The Fourth Circuit a lso observed t hat the record showed that when Dinkins learned that Dowery had not died o f his wounds in October 2004, Dinkins said that he and W est n e eded “to go to the hospital to f inish him of

f .” Id. a t 3 85. Under these circum stances, the court held that the trial c o u r t p r operly adm itted Dowery ’ s statem ents against Dinkins because “the evidence showed that the m urder of Dowery in N ovem ber 2006

wa s i n f urtherance, within the s cope, and reasonably f oreseeable as a natural consequence of an ongoing conspiracy

of which Dinkins was a m em ber.” Id. ¶59. There is n o such incrim inating evidence in McClung’s case. T o the contrary , we f ind that th e S t a t e did not present suf f icient evidence that McClung conspired with any other def endant to k ill K ey s or that K ey s’s d eath was f oreseeable to McClung. To the extent that McClung was a part of the shooting incident, the State m ade n o showing t hat any conspiracy

to do so, and i nvolving McClung, conti n u e d as f ar as McClung’s involvem ent or acquiescence in killing Key s . See Thompson , 286 F.3d at 9 65 (“By lim iting coconspirator waiver-by -m isconduct to those acts that were reasonably f oreseeable to ea c h individual def endant, the [ conspiratorial r esponsibility ] rule captures only those conspirat o r s that actually a c quiesced either explicitly or im p licitly to the m isconduct.”). Sergeant Bankston testif i ed that McClung was not present the night Key s w a s k illed, nor was McClung developed as a s uspect in t he Key s m u rder. Indeed, Key s’s m

urder occurred one and a half
y ears af t er the s hooting and f

rom the t i me when Key s gave his statem ent. There also is no evidence in the r e c o rd of any com m unication between M cClung a nd Holland or McClung and Buchanan (both suspects in Key s’s killing)—either bef ore or af ter Key s was shot.

2 4¶60. Based upon our d e novo r eview of the record and the applicable law, we conclude that

t h e t r i a l c ourt erred i n adm i tting Key s’s statem ent against McClung based upon the
f orf eiture-by -wrongdoing doctrine. W e reverse McClung’s convictions and sentences and

rem and f or a new t rial f

or this reason and the additional reason addressed in the f ollowing section.
II. Motion for Severance ¶61. M c C l u n g also asserts t hat the trial c o urt erred in f ailing to s ever his trial f

rom th e other def endants. In t he light of our f inding that Key s ’s statem en t s h o u l d n o t have been

a dm itted against McClung, w e agree. Regarding severance of trials, Unif orm Count y a n d Circuit Court Rule 9.03, which applied when McClung was tried in May 2017, 1 5 provides as f ollows: The granting or ref

u sing of severance of def

e ndants i n cases not involving the death penalty shall b e i n t h e d i scretion of the trial judge. The court m ay , on m otion of the state or def

e ndant, grant a severance of of f enses whenever:
1. If bef

ore trial, it is deem ed a

p propriate to prom ote a f

air determ ination of the d ef

endant’s guilt or i n nocence of each of f ense . . . . W e theref ore review t he t rial court’s ref usal to grant a m otion f

or severance f

or an abuse of discretion. King v. State , 8 5 7 S o . 2 d 702, 716 (¶19) (Miss. 2003). In r eviewing the denial of a m otion f

o r severance, we c onsider two criteria: “(1) wheth e r the testim o ny of one co-def endant tends to exculpate that def endant at the e xpense of the o ther def endant and (2) whether the balance of the evidence introduced at trial tends to go m ore to the guilt of one

15 T h e M ississip p i R u les o f C rim i n al P ro ced u re d id n o t b eco m e ef f ectiv e u n til Ju ly 1 , 2 0 1 7

. 2 5def

endant rather than the other.” Hayes v. State , 168 S o . 3 d 1065, 1074 (¶34) ( Miss. Ct. App. 2013) (internal quotation m a rks om itted) (quoting Hawkins v State , 538 So. 2d 1204,
1 207 (Miss. 1989)). McClung m ust also show that he was prejudiced by the t r i a l c o u r t ’ s ref usal to grant his m otion f or severance in order f

or this Court to r e v e r s e and rem and his case f or a new trial. See id. ¶62. In t his case, the balance of the evidence introduced at trial weighed f a r heavier to the guilt o f o ther co-def

endants than McClung—indeed, as addressed a b ove, Key s’s statem ent should not have been adm itted against McClung at all, absent a showing that McClung acted or acquiesced in Key s’s killing or that i t was f oreseeable to McClung. U pon r eview of the record and apply ing controlling law, we conclude that McClung was plainly prejudiced by the trial court’s denial of his m otion f or severance. Accordingly , we f ind that the trial court abused its discretion in d eny ing McClung’s m otion f or s everance, and we reverse M cClung’s convictions and sentences and rem and f or a new trial f

or this additional reason. ¶63. B e c a u s e w e f

i n d that the trial court erred in adm itting Key s’s statem en t a g a i n s t McClung and i n deny ing McClung’s m otion f or severance, we reverse and r em and on these grounds.
III. Sufficiency of the Evidence ¶64. McClung also asserts that his aggravated-assault convictions should b e reversed and rendered because the State presented insuf f icient evidence supporting his convictions. 16 W e

16 We ad d ress M cC lu n g ’s su f f i cien cy -o f- t

he

- e v i de nc e a

r g u m en t in th e lig h t o f N

ew ell v. S ta te , 1 7 5 S o . 3 d 1 2 6 0 (M iss. 2 0 1 5 ), a case in w h i ch th e M ississip p i S u p rem e C o u rt ex p lain ed th at a ch a llen g e to t h e su f f icien cy o f t h e ev id en ce sh o u ld b e ad d r essed o n ap p eal ev en w h en th e ap p ellate c o u rt d eterm in es th at rev ersal an d rem an d is w arran ted b a sed u p o n 2 6m ay consider t he erroneously a d mitted evidence (i.e., Key s’s statem ent) in a ddressing

McClung’s suf

f i ciency -of

- the-evidence argum ent. S ee Lockhart v. Nelson , 488 U.S. 33, 40 (1988); a ccord Hilliard v. State , 950 So. 2d 224, 230 (¶28) (Miss. C t. App. 2007). Taking into a ccount Key s’s statem ent and the other e vidence against M cClung presented a t trial, we f ind that the S tate presented suf f icient evidence to sustain McClung’s aggravated-assault convictions. W e f

ind, theref

ore, that the proper procedure is t o r e v e r s e a nd rem and under these circum stances. 17 Lockhart , 488 U.S. at 40 (holding that the Double Jeopardy Clause

an ev id en tiary erro r in th e t rial c o u rt b e cau se th ere is p o ten tial to ren d er a j u d g m en t o f acq u ittal. Id

. at 1 2 6 7 (¶5 ).

17 Judge M cD o n ald a sserts in h er d issen t th at w ith o u t K ey s’s statem en t, th e rem ain i n g ev id e n c e a g ain st M cC lu n g is in su f f icien t to su p p o rt h is co n v ictio n s o f ag g rav ated assau lt, an d , t h e r e f

o re, h is case s h o u ld b e rev ersed an d ren d e red , rath er th an r em an d e d

. C o n trary to th is assertio n , e v en if th ere arg u ab ly rem a i n s n o ev id en ce, o r in su f f icien t ev id en ce, to su p p o rt M cC l u n g ’s co n v ictio n s, th e p ro p er p ro ced u re is to r ev erse a n d rem an d in th is case w h ere a trial ev id en tiary erro r is in v o l v ed , a s t h e M i ssissip p i S u p rem e C o u rt f i rst ex p lain ed in With ersp o o n v. S ta te, ( ex r el. West) , 1 3 8 M i ss. 3 1 0 , 1 0 3 S o . 1 3 4 , 1 3 9 (1 9 2 5 ) , as f o llo w s: T h e reco rd sim

p l y p resen ts a case w h erein a f act n e c essary to su p p o r

t t h e j u d g m en t ren d ered w as p ro v en o r m ad e to ap p e ar b y in c o m p eten t ev id en ce, an d in su ch a case th e S u p rem e C o u rt o n a p p eal th ereto sh o u ld n o t d ecid e th e ca se a s if n o evid

en c e o f t h e fa ct h a d b een in tro d

u ced , b u t sh o u ld rem a n d th e ca se fo r a n e w t r ia l so t

h a t th e fa ct m a

y b e m a d e to a p p ea r b y c o m p eten t evid en c e. T h is, in so f

ar as w e are aw are, is th e u n iv ersal ru le. ( e mp h asis ad d ed ) ; a cco rd C a m p b ell v. S ta te , 7 9 8 S o . 2 d 5 2 4 , 5 3 0 (¶2 2 ) (M iss. 2 0 0 1 ) (rev ersin g an d rem an d i n g d ef en d an t ’ s co n v ictio n w h en d ef en d an t’s statem en t to th e au th o rities an d ev id en ce o f b lo o d o n h is clo th es w ere f o u n d in ad m issib le an d r e ma i n i n g ad m issib le ev i d en ce o f

f ered a t t r i a l w a s in su f

f icien t to su stain th e co n v ictio n ); G a vin v. S ta te , 7 8 5 S o . 2 d 1 0 8 8 , 1 0 9 5 (¶2 8 ) (M iss. C t. A p p . 2 0 0 1 ) (reco g n izin g t h a t “[ e] v en w h en th e o n ly ev id en ce o n an issu e h as b een d eclared in ad m issib le, t h e p r o p er p ro ced u re is to rem an d ”). S

ee L o ckh a r t , 4 8 8 U .S

. at 4 0 ; U n ited S t a tes v. S a rm ien to -P erez , 6 6 7 F

. 2 d 1 2 3 9 , 1 2 4 0 (5 th C ir.1 9 8 2 ) (rem an d in g w h ere a co - co n sp irato r’s co n f essio n w a s imp r o p erly ad m itted ag a in st d ef

en d an t ; e x p lain in g th at rem an d w as p ro p er “[ b ] e cau se w e can n o t k n o w w h at e v i d e n ce m ig h t h av e b een o f f ered i f th e ev id en ce i m

p ro p e rly ad m itted h ad b een 2 7allows re-trial when a reviewing court determ ines that a conviction m ust be reversed because evidence w as erroneously a dm itted against def endant, even when, without the inadm issible

e v i dence, there was insuf f icient evidence to support a c onviction); Hilliard , 950 So. 2 d a t 230 (¶28) (“We f

in d th at, d isco u n tin g th e in ad m issib le ev id en ce, th ere w a s q u i te m eag er

ev id e n c e to su s tain [ d ef

en d an t’s] c o n v ictio n . H o w ev er, all th e ev id en c e a d m i t t ed at trial w as

su f f ici e n t t o s u s t a i n [ it]

. . . . Wh ere w e, o n rev iew , f i n d th e circu m stan ces as w e d o , th e
p ro p er resu lt is to rev erse an d rem an d .”). ¶65. The record ref

lects that the State showed that on the night of the shooting McClung

w a s at Holland’s house with Holland, J ones, Key s, a nd Buchanan, and that the Loves h a d recently “gotten” one of t heir f riends. According to Key s’s statem ent, Jones had stated a f ew day s earlier that he needed to get one of the Loves because of this i ncident. The group lef t Holland’s house in Key s’s Tahoe to go to a club. Key s said in his statem ent that Jones was

arm ed, but that he (Key s) d id not know it at the t im e. However, Key s also s a i d in his

statem ent that it was not unusual f or Jones to have his gun because Jones “alway s” carried his s hort AK-47. At trial, two of the surviving victim s testif i ed that Holland was also arm ed that evening. ¶66. T h e p roof established at trial that as the group was traveling on Hig h w a y 8 2 , t h e y encountered the Loves. In his statem ent, Key s said that Jones spotted the Loves in the red Pontiac, a nd Jones call e d o u t t h a t i t looked like the Loves in that car. According to Key s, Jones t h e n o p e n e d f

i r e on the Love vehicle as they passed by

. Testim ony f rom two of the

o rig i n ally ex clu d ed b y

th e trial j u d g e”). 2 8surviving victim s at t rial also elaborated on the circum s t a n c e s s u rrounding the shooting.

Stigler and P erez Love both testif i ed that the Tahoe pulled up beside them (the Loves in the red Pontiac) and t hat b oth Jones and Holland began shooting. Stigler also testif ied that “[ t]hey bum

ped us into the ditch.

. . . They h i t t h e b a c k e nd o f our c ar . . . so o nce they bum ped the car we couldn’t do nothing but go over in the f ield and roll.” ¶67. The evidence at trial also showed that af ter the shooting, M cClung m ade no attem pt
to leave the group. Holland m ade arrangem ents t o swap the Tahoe out f or another vehicle, he told the group that he h ad done so, and the group traveled to Moorhead, Mississippi where

t h ey swapped vehicles. The group then t ook backroads to a Best W estern h o t e l i n Greenwood, and Key s, Buchanan, Jones, and M cClung spent the night together in a r o o m that the evidence showed was rented by McClung. ¶68. Under Mississippi law, “ a person who acts i n ‘ conf e d eration’ with others to violate

a law is liable as a principal under either the theory o f conspiracy o r t he t heory of aiding and abetting.” Adams v. State , 726 S o. 2d 1275, 1279 ( ¶11) (Miss. Ct. App. 1 9 9 8 ) ( q uoting Shedd v. State , 228 Miss. 381, 386, 87 S o. 2 d 898, 899 ( 1956)). As such, McClung need not be identif i ed as a shooter to be f

ound liable. Adm ittedly , d iscountin g K e y s ’ s statem ent, “there was quite m eager e vidence” sustaining McClung’s convictions. Hilliard , 950 So. 2d

at 230 (¶28). As we f

ound i n Hilliard , however, we likewise f i nd in this case that, nevertheless, “ all the e vidence a dm i tted at trial w as s uf f icient to sustain [ McClung’s] convictions[ ,]

. . . [ and, theref o re,] “the proper result is t o r everse and rem and

. . . b ased upon
t h e im proper adm ission of Key s’s statem ent against McClung at trial, as addressed above

.

2 9Id.

¶69. REVERSED AND REMANDED. BARNES, C.J., GREENLEE, TINDELL, LAWRENCE AND C . WILSON, JJ., CONCUR. WESTBROOKS, J., CONCURS I N PART A ND DISSENTS IN P ART WITHOUT SEPARATE W RITTEN OPIN I O N. J. WILSON, P.J., CONCURS IN P A R T A N D D I S S E N T S I N P ART WITH SEPARATE WRITTEN O PINION, JOI N E D BY McDONALD, J. McDONALD, J., CONC U R S I N PART AND DISSENTS IN P A RT WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS , J . McCARTY, J ., CONCURS IN PART AND DISSENTS IN P ART WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, J. J. WILSON, P.J., CONCURRING IN PART AND DISSENTING IN PART: ¶70. I agree that the a d mi s s ion of Key s ’s statem ent v iolated McClung’s rights under the Conf r ontation C lause. H owever, rather t han rem anding f o r a new trial, I would r e nder a judgm ent of acquittal in f avor o f M c C l u n g on t he rem aining counts because the evidence presented was insuf

f icient to convict him

of aggravated assault. ¶71. W h en w e address a challenge to the suf f iciency of the e vidence, all credible evidence of guilt m ust be taken a s true, and the State i s entitled t o all reasonable inf e rences that m ay be drawn theref

rom . H aynes v. State , 250 So. 3d 1241, 1244 (¶6) (Miss. 2018). W e consider the evidence in the l ight m o st f avorable to the State, although we also keep in m ind that the
State m ust prove the def

e ndant’s guilt bey ond a reasonable doubt. Id. This b urden m ust be satisf i ed with evidence, not s peculation or conjecture. Edwards v. State , 469 So. 2d 68, 69-
70 (Miss. 1985); Sisk v. State , 294 So. 2d 472, 475 (Miss. 1974). W e w i ll reverse and render
if the f a cts and inf

erences p o i n t i n f

avor of t he def

endant with such f

orce that r easonable jurors could not f

ind him guilty bey ond a reasonable doubt. H aynes , 250 So. 3d at 1244 (¶6).
But we w ill af

f irm t he conviction if “any rational t rier of f act could have f

ound the essential

3 0elem ents of the crim e bey ond a reasonable doubt.” Id. (quoting Shelton v. State , 214 So. 3d

250, 256 (¶29) (Miss. 2017)). ¶72. There is no evidence t hat McClung f i r e d a g u n i n t o t h e red P ontiac, b ut the State
argues t hat he aided and a betted Jones and Holland. “One who aids and abets a nother in the

com m ission of a c rim e is guilty as a principal.” Hughes v. State , 983 So. 2d 270, 276 (¶14) (Miss. 2008). “ To aid and abet the com m ission of a f elony , one m

ust do som ething that will incite, encourage, or assist the a c t u al p erpetrator in t he com m ission of t he crim e or participate in the d esign o f the f e lony .” Id. (quotation m arks, ellipsis, and brackets om itted).
W e do “not recognize guilt by a ssociation.” Id. “Mere pr e s e nce, even with t he intent of assisting in the crim e, is insuf f icient unless the intention to assist w as in som e way

com m unicated to the p rincipal.” Id. (quotation m arks and brackets om itted). Likewise, m ere
presence “at the com m ission of a c rim e without taking any s t eps to prevent it does not alone indicate s uch participation or com bination in the wrong done as to show crim i nal liability .” Id. This is true even if

the def endant approves of the crim inal act. Id. ¶73. None of t he e y ewitnesses identif i ed McClung a s a p assenger in the Tahoe. The only evidence against h im w as Key s’s statem ent. 18 However, during his app r o xim ately f orty

three-m inute recorded statem ent , Key s said little about M cClung a nd nothing to im plicate
him as an aider and abettor i n the shooting. Key s stated only that McClung was in the back

seat of the Tahoe w hen the s hooting occurred and that McClung got a r oom f or the group at

18 T h e U

. S

. S u p r em e C o u rt h as h eld th at a rev iew in g co u rt m ay co n sid er erro n eo u sly ad m itted ev id en ce w h en ru lin g o n a ch allen g e to th e su f f icien cy o f t h e ev id en ce. L o ckh a rt v. N elso n , 4 8 8 U .S

. 3 3 , 4 0 ( 1 9 8 8 ); a cco rd H illa rd v. S ta te , 9 5 0 S o . 2 d 2 2 4 , 2 3 0 (¶2 8 ) (M iss. C t . A p p . 2 0 0 7 ). 3 1a h otel i n Greenwood a bout three hours af

ter the shooting

. Key s stated that there was no discussion about shooting o r seeking revenge a g a i n st t he Loves bef ore the g roup lef

t Holland’s house that night en route to a lingerie p arty

. Key s denied t hat he knew about any plan to a ttack the Loves or knew the Loves would be on the highway in the Pontiac. Key s claim ed that he was shocked when Jones raised his gun and began shooting at the Pontiac. According to Key s, “day s prior” t o t h e shooting Jones had said that he needed to get the
L o ves because they had shot a f riend of Key s and Jones. The m ajority cites this prior conversation as if it is evidence a gainst McClung. Ante at ¶65. But there is no e vidence that McClung was a party to that p rior conversatio n o r knew a n y thing of J ones’s or Holland’s intentions. Key s stated that im m ediately af ter the shooting Holland m a d e arrangem ents to switch cars in Moorhead. And af t er the g roup a r

rived at the hotel in Greenwood, J ones and Holland lef

t alone, apparently to get rid of their guns. K ey s, McClung, and B uchanan spent the night at the hotel and called a f riend to pick them up in the m orning. At the tim e of his interview, Key s h a d n o t spoken to Buchanan o r McClung since the m orning af ter the shooting. ¶74. Even w it h K e y s ’ s i m properly adm itted statem e nt, see supra n.18, the evidence is insuf f icient to sustain McClung’s conviction because it establishes only his presence at the

scene of the c r i me . McClung’s rental of a hotel room three hours af ter the shooting is not

s u f f i cient to p rove, b ey ond a reasonable doubt, t hat he encouraged or assisted Jon e s o r Holland prior to or during the com m ission of t heir of f ense. McClung’s rental of the room
mi g h t h a ve supported charging him as an accessory after the f act. See Miss. Code Ann. §

3 297-1-5 (Rev. 2014); Harris v. State , 290 So. 2d 924, 9 25-2 6 ( Miss. 1974). However,

McClung was indicted only as a p rincipal/aider and abettor. S ee Hall v. State , 127 So. 3d 202, 204 (¶7) (Miss. 2013) (“[ A]ccessory af ter the f act is a d istinct crim e f

or which a person
cannot be punished u n less indicted.” (quotation m arks om itted)). Just because McClung got

a h otel room hours af

ter t he c rim e, we cannot a ssum e that h e provided som e u nknown f orm of e n c o u r a g e m ent or a ssistance prior to or during the crim e . T h at is not a r easonable
inf erence based on the evidence but m ere speculation and conjecture. ¶75. In addition, the m ere f act t hat McClung “m ade no attem pt to l e a ve the group” af

ter the shooting, a n te at ¶67, is insuf f icient to establish, bey ond a reasonable doubt, that he encouraged or assisted Jones or Holland prior t o o r during the shooting. As noted above,

m ere presence at a crim e does not support a conviction f o r aiding and abetting—even if the def endant took no steps t o prevent the crim e a n d a ctually approved of the crim e. Hughes , 983 So. 2 d at 276 (¶14). It f ollows that McClung cannot be convicted of aiding and abetting just becaus e h e d i d not quickly disassociate him self f rom Jones and Holland af ter he witnessed them open f

ire on t he Loves. A n “attem pt to leave” a m

u rderous group can be a risky proposition. It would be specula t i o n and conjecture t o say that McClung m ust have

som ehow encouraged o r assisted in the crim e just because h e “m ade n o a t t e mp t to leave” af terward. ¶76. T h e r e is nothing else in Key s’s statem ent to show that McClung p articipated in o r knew about any plan to att ack the Loves. Nor i s there any e vidence t hat he encouraged or assisted Jones or Holland i n the s h o o t i ng. To f ind McClung guilty as an aider and abettor

3 3in the shooting, t he j ury had t o f ind, bey ond a reasonable doubt, that M cClung actually aided, counseled, o r encouraged Jones or Holland in the com m ission of t he crim e. Jones v. State , 710 So. 2 d 870, 874 (¶15) (Miss. 1998). There is no ev i d ence to support such a f inding. Key s’s statem e nt proves only that McClung w as present in the Tahoe, which is insuf f icient to sustain the conviction. Hughes , 983 So. at 276 (¶14). ¶77. Tellingly , the m ajority opinion does not even hazard a g u e s s a s t o w h a t t y p e of assi s t a n c e o r encouragem ent McClung m ight have provided to Jones or Holland. The

m ajority sim

ply holds that there is suf f icient evidence to e stablish, bey o nd a r easonable doubt, t hat McClung aided and abetted them in som e unknown and unspecif ied way . Such

a conclusion requires f

ar too m uch speculation t o support a crim inal c onviction. Theref ore, I would render a judgm ent of acquittal in f avor of McClung on the rem aining counts against
him . I respectf

ully concur in part and dissent in part. McDONALD, J., JOINS THIS OPINION. McDONALD, J., CONCURRING IN PART AND DISSENTING IN PART: ¶78. I agree and concur with the m ajority ’s analy sis o f this case and in its conclusion that McClung’s conviction should be reversed; I only disagree with the m ajority ’ s rem a nd of the case. I would both reverse and render. ¶79. W i th the severance of McClung’s c a se and th e p r o p e r e x c l u sion of the videotaped

statem ent of Jacarious Key s, t he only connection McClung has w i th t his case i s the f act that he rented a room at the Best W estern hotel that night. Jasm ine Cage, who s a w the Tahoe
pass her with an interior l ight on, testif ied t hat McClung was not in the car when shots were

3 4f

ired at the L o ve vehicle. N one of t he surviving occupants of t he Love vehicle—Kelsey Jennings, Ken-Norris Stigler, a n d P erez Love—identif i ed M cClung a s a passenger in the Tahoe either. In an i nterview at UMMC the next day , Perez n am ed David Reedy , Arm ond Jones, Michael Holland and K ey s as occupants in the vehicle that h ad pulled up next to t hem and was s hooting at them

. At trial, Perez and Stigler testif ied that Jones w as in the f

ront seat shooting an AK-47, and Holland w as in t he back s eat shooting a pistol. Neither m entioned seeing M cClung. Jennings testif ied that he did not see the vehicle that cam e alongside t hem and started shooting, so he could not testif y as to the occupants. ¶80. The only testim ony c onnecting McClung to t his case is Detective Stanton’s testim ony that McClung had rented a room at the Best W e stern hotel that night. Q.

. . . But y our investigation showed that Jam es McClung, he rented the room , correct?
A. Correct. Q. He rented the room on August 15th. Yes?
A. Yes. Q. And he checked out on August 16th, correct?
A. W ell, I really

don’t know what t im e he checked out, b ut it was r ented f or one night, I believe. Q. And y ou had an opportunity to look at a video f rom the Best W estern?
A. I did exam ine the video f ootage f rom the Best W estern. Q. And when y ou looked at t he video, y ou didn’t s ee Sedrick Buchanan in the video, did y o u?
A. The only person that I saw on the video was Jam es McClung when he

3 5cam e in t o register f or the room a nd when he went t o the room and l ef t the room f

rom the interior portion. Of cour s e , t here a re b lind spots in the sy stem , and that’s all we saw.
So there w as no evidence that McClung was there t hat night with Key s , Holland, Buchanan,
or Jones: Q. W ith regard to K ey s’ statem ent th a t t h e y w ent back to the Best W estern, y ou were not able to verif y that all of them were there at t hat tim e in and around the shooting, am I correct?
A. I c ould not conclude or rule out w here they reenter e d that room t hat night or that m orning at all. Q. In f

act, y ou h ave no evidence of them b eing there at a ll together during this tim e, the renting of

the room or thereaf

ter, correct?
A. Other than the statem ent of Jacarius Key s , no. Moreover, on cross-exam ination, Staten adm itted that McClung had f requently rented room s
at the Best W estern and was a ctually f ound at the Best W estern when he was arrested f or this charge. ¶81. W i th the exclusion of Key s’s statem e nt, the rem aining evidence against McClung is insuf f icient to support his convictions of aggravated assault in this case.
In evaluating the suf

f iciency of t he evidence, this Court m ust decide whether it allows a jury t o f

i nd bey ond a reasonable doubt that the accused com m itted the act charged, and that he did so under such circum stances that e v ery elem ent of the o f f ense existed; a nd where t he evidence f ail s t o meet this test i t is insuf f icient to support a conviction. Ringer v
. State , 203 So. 3d 794, 796 (¶3) ( Miss. Ct. App. 2016) (internal citation mark

om itted). The elem ents of aggravated assault a r e f ound in M ississippi Code Annotated section 97-3-7(2)(a) (Rev. 2014):

3 6A person i s guilty of a ggravated assault if he or s he (i) attem pts to cause serious bodily injury to another, or causes such i njury purposely , knowingly or recklessly under circum stances m anif esting extrem e indif

f erence t o the value of hum an l if

e; (ii) attem

pts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other m eans likely to produce death or serious bodily harm ; or (iii) c auses a ny injury to a child w h o is i n the process of boarding or exiting a school b us in the c ourse of a violation of Section 63-3-615 . . . . Here, there is no proof that McClung attem pted to cause or purposely caused bodily

injury

to any of the people riding in the Love vehicle that night even if the evidence is weighed in the light m ost f

avorabl e t o the j ury ’s verdict. Consequently , the case not only needs t o be

rev e r s e d ; i t n eeds also to be rendered. “Reversals based upon a f i nding that the verdict is against the overwhelm ing weight of the evidence result in rem and f or n ew trial. R eversals due to t rial error a lso result in rem and. Reversals based upon a f inding that the evidence is insuf f icient to support the verdict, however, are not rem anded but are r endered.” Moore v. State , 755 So. 2d 1 2 7 6 , 1 2 8 0 (¶15) (Miss. Ct. App. 2000). It would be a waste of judicial

resources and would put an unnecessary f inancial and psy chological b urden o n McClung to try the case against h im agai n . A c c o rdingly , I would r everse McClung’s c o nviction and render judgm e nt in his f

avor. WESTBROOKS, J., JOINS THIS OPINION. McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART: ¶82. Because I believe that the m ultiple tests im

plem ente d today regarding f orf eiture by
wrong d o ing are unnecessarily com plex, I respectf

u lly dissent in part. W e s hould strive to provide clarity to t he Bench a nd Bar in how to i m p lem ent the Mississippi Rules of Evidence. This is especially so because “[ t]rials are of t en chaotic and som etim e s intensely adversarial,”

3 7and w e need the Rules “to bring order and f air play to the trial process.” Richards v. State , No. 2 017-KA-00809-COA, 2019 W L 1771923, at *4 (¶18) (Miss. C t

. App. Apr. 23, 2019).
W e need tests and rules that can be applied in the chaotic arena of trial. ¶83. The m ajority cite s t o v a r i o u s decisions f rom the U .S. Suprem e C ourt, the Fourth Circuit, the F if

th C ircuit, the Tenth Circuit, and the A rm y Court o f C rim i nal Appeals. 19 Not only d o we adopt a new interpretation of a rule we have never previously analy z ed, but we also adopt a new sub-test , on the “conspiratorial responsibility theory .” I am greatly reluctant

to f ind the State was i n e r r o r under the boundaries of the law as it was known at trial af ter

we h a v e t r aveled so f

ar to f ind reasons f

or error. I also think t his interpretation does not provide the clarity

needed f or a clear application of

the Rule. ¶84. The better path would be to conf ine ourselves t o t h e plain language o f the rule and whether t he exception was or w as not m et. More precisely , we should conf i ne ourselves to whether the trial court was within its discretion in f inding that Rule 804(b)(6) was m et.

19 I b e liev e th e sp raw l o f th e m aj o rity o p in io n in to f ed eral cases is also u n n ecessary f o r p u rp o ses o f

p l acin g o u r o w n in terp retatio n o f o u r o w n R u les at th e f o ref r o n t. In 1 9 8 5 th e M iss i s s i p p i S u p rem e C o u r t ad o p ted t h e R u les o f E v i d en ce, an d th o se R u les w ere im p lem en ted b y th e C o u rt itself , u n d er p o w er v ested b y th e M ississip p i C o n stitu t i o n o f 1 8 9 0

. S ee M .R .E

. A d o p tin g O rd e r (M iss. J an . 1 , 1 9 8 6 ); N ew ell v. S ta te , 3 0 8 S o . 2 d 7 1 , 7 6 (M iss. 1 9 7 5 ) (“T h e in h eren t p o w er o f th i s C o u rt to p ro m

u lg ate p ro ced u ral ru les em an ates f ro m th e f u n d am en t al co n stitu tio n al co n cep t o f t h e sep a ratio n o f p o w ers an d th e v estin g o f j u d i cial p o w ers in th e co u r ts.”). In co n trast, th e F e d eral R u les o f E v id en ce w ere w ritten an d a d o p ted b y C o n g ress as a s tatu to ry co d i f

icatio n o f ev i d en tiary ru les f o r th e f ed eral co u rt s y stem

. S

ee D a u b ert v. M errell D o w P h a r

m
. In c. , 5 0 9 U .S

. 5 7 9 , 5 8 7 (1 9 9 3 )

. S o o u r ru les are w ritten b y o u r S tate Ju d iciary an d in terp r eted as seen f it; th e F ed eral ru les are w ritten b y its L e g i s l a t u re an d req u ired to b e in terp reted as an y o th er sta t u te. A t r o o t, th ere are sim p ly d if f eren t issu es f acin g t h e f

ed e ral c o u rts an d d if

f eren t m o d e s o f in terp retatio n . I v astly p ref er u s d ev elo p i n g o u r o w n i n terp retatio n o f o u r o w n R u les an d n o t “lo ck step p i n g ” w ith th e F ed eral Ju d iciary

. 3 8¶85. The m ajority i s correct t hat we m ust reverse McClung’s c o n v i c t i o n s b ecause the

m otion f or s everance should have been granted. However, I respectf ully dissent f

rom its digression regarding t he adm is s i o n of Key s’ statem ent and its decision t o reverse the conviction on that evidentiary ruling. WESTBROOKS, J., JOINS THIS OPINION.

3 9