IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-CT-01505-SCT
MARLON LITTLE
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/02/2014 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: ALEXANDER C. MARTIN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED - 10/12/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. Sitting as “thirteenth juror,” the Court of Appeals reversed Marlon Little’s convictions
and remanded for a new trial, finding the weight of the evidence preponderated heavily
against the verdict. We granted certiorari to clarify the appellate court’s role when reviewing a motion for new trial. Despite this Court’s prior language suggesting otherwise, neither this
Court nor the Court of Appeals assumes the role of juror on appeal. We do not reweigh
evidence. We do not assess the witnesses’ credibility. And we do not resolve conflicts
between evidence. Those decisions belong solely to the jury. Our role as appellate court is
to view the evidence in the light most favorable to the verdict and disturb the verdict only
when it is so contrary to the overwhelming weight of the evidence that to allow it to stand
would sanction an unconscionable injustice.
¶2. Applying this standard, we find no reason to disturb Little’s guilty verdict. Therefore,
we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of
the Claiborne County Circuit Court.
Background Facts and Procedural History
I. Investigation and Conviction
¶3. Nurse practitioner David Ellis was attacked from behind and robbed while leaving his
medical clinic. Ellis reacted by swinging his computer bag at the assailant’s head. During
the struggle, Ellis fell down, and his attacker also stumbled. Ellis was on the ground when
his attacker stuck a gun in Ellis’s face. Ellis saw the man “square in the face” from about
three feet away. The man demanded Ellis’s wallet. Ellis complied. And the man fled.
¶4. Ellis went straight to the Port Gibson Police. He described the robber as “a black male
wearing all black with a hood over his head.” His body type was “small.” And he “actually
could have been between 20 or better.”
2 ¶5. A few days later, Police Chief Calvin Jackson received a tip from an informant.
Based on this tip, Chief Jackson put Little’s photo in a lineup. Chief Jackson presented the
seven-photo lineup to Ellis. When Ellis saw the photo of Little, the fourth in the lineup, Ellis
recognized him as the robber immediately. Little was indicted for armed robbery and tried
a month later.
¶6. The State called both Chief Jackson and Ellis as witnesses. Chief Jackson testified
about the informant’s tip connecting Little to the robbery. Based on this tip, he composed
the photo lineup and showed it to Ellis. On cross-examination, Chief Jackson was asked
about discrepancies between Ellis’s initial description of his attacker given to the police and
Little’s actual physical characteristics. He was also asked about a later description given to
a private investigator hired by Little’s attorney. In Ellis’s statement to Little’s private
investigator, Ellis said the robber was clean-shaven, while Little was known to have a goatee.
Chief Jackson did not know if Little had facial hair when he was arrested. But Chief Jackson
agreed with defense counsel that Little was not “stocky or muscular.” Chief Jackson was
also asked about Little’s gold teeth and the fact Ellis never mentioned them to the private
investigator. Chief Jackson did not recall any mention of Little’s teeth in Ellis’s initial
description.
¶7. When Ellis took the stand, he stated clearly and unequivocally that Little was man
who robbed him. Ellis recognized Little based on Little’s entire face, especially Little’s
pronounced facial creases. Drawing from his medical background, Ellis described Little’s
facial creases as “nasolabial folds.” Ellis testified that he too shared the same physiological
3 feature. Ellis also told the jury that he recognized Little by his eyes. He remembered them
because they were “scared-looking.” He described Little as “slender but solid”—meaning
Little was not easily moved or knocked down when Ellis struck him with the computer bag.
¶8. When questioned by defense counsel, Ellis conceded that he probably had described
the robber previously as “muscular and stocky” in the recorded statement to Ellis’s
investigator. Ellis explained that Little seemed “solid as a rock” when Little jumped him and
grabbed him. As for Little’s mouth, Ellis said he had not noticed Little’s teeth because Ellis
“had a .45 pistol stuck right there in my face.” Ellis also was asked about the robber’s age
discrepancy. He described the robber to Chief Jackson as twenty years old “or better.” And
Little was actually thirty-nine at the time of the attack. To this, Ellis said he did not know
how old Little actually was. He explained he was not a good judge of age.
¶9. Little called no witnesses. The jury found him guilty of armed robbery and possession
of a weapon by a convicted felon.1 He was sentenced to thirty years’ imprisonment for
armed robbery and ten years’ for felon-in-possession, with his sentences to run concurrently.
After his post-trial motions for judgment not withstanding the verdict and for a new trial
were denied, he timely appealed.
II. Court of Appeals’ Decision
¶10. Little’s appeal was assigned to the Court of Appeals. Little raised one issue—that his
conviction was against the weight of the evidence, requiring a new trial. In a six-three
1 Before trial, Little stipulated he was a convicted felon.
4 opinion, the Court of Appeals reversed Little’s convictions and remanded for a new trial.
Little v. State, No. 2014-KA-1505-COA, 2016 WL 6876506 (Miss. Ct. App. Nov. 22, 2016).
¶11. Quoting Bush v. State, 895 So. 2d 836 (Miss. 2005), the Court of Appeals majority
described its appellate posture as that of “thirteenth juror.” Little, 2016 WL 6876506, at *2
(¶7). And in this role, “if it ‘disagrees with the jury’s resolution of the conflicting testimony,’
the property remedy is to grant a new trial.” Id. (quoting Bush, 895 So. 2d at 844).
¶12. The appellate court majority found Ellis’s initial identification conflicted with Little’s
“actual physical attributes, including age and build.” Id. at *2 (¶10). And because Ellis’s
identification of Little as the robber was the only substantive evidence against Little, the
majority found a new trial was warranted. Id. at *3 (¶11).
¶13. The dissent disagreed with the majority’s use of the “thirteenth juror” standard of
review. Id. at *3 (¶14) (Griffis, J., dissenting). The dissent quoted extensively from Judge
Larry Roberts’s special concurrence in Hughes v. State, 43 So. 3d 526, 530-33 (Miss. Ct.
App. 2010). Little, 2016 WL 6876506, at **3-6 (¶16) (Griffis, J., dissenting). In that case,
Judge Roberts traced the history of the “thirteenth juror” language and explained how an
appellate court, faced with a cold record, can never perform the function of “juror.” Hughes,
43 So. 3d at 530-33 (Roberts, J., dissenting). Applying an abuse-of-discretion standard, the
dissent in Little saw no abuse in the trial judge’s denial of Little’s motion for a new trial.
Little, 2016 WL 6876506, at *7 (¶18) (Griffis, J., dissenting).
¶14. The State filed a petition for certiorari, which we granted to clarify Bush’s “thirteenth
juror” language.
5 Discussion
¶15. We take this opportunity to clarify that neither this Court nor the Court of Appeals
ever acts as “juror” on direct appeal. “We sit as an appellate court, and as such are ill
equipped to find facts.” Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985). “[E]ven if we
wanted to be fact finders, our capacity for such is limited in that we have only a cold, printed
record to review.” Id.
¶16. The concept of the appellate court acting as “thirteenth juror” was birthed in Bush.
In that case, this Court sought to distinguish the standard of review for the denial of a motion
for judgment notwithstanding the verdict, which challenges the sufficiency of the evidence,
from the standard of review for the denial of a motion for a new trial, which challenges the
weight of the evidence. Bush, 895 So. 2d at 843-45. In explaining the standard of review
for the denial of a motion for a new trial, we borrowed language from Amiker v. Drugs For
Less, Inc., 796 So. 2d 942 (Miss. 2000):
[T]he court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Bush, 895 So. 2d at 844 (quoting Amiker, 796 So. 2d at 947).
¶17. But as Judge Roberts pointed out in his special concurrence in Hughes, “[i]n Amiker,
the central issue was whether a successor judge could vacate his predecessor’s order granting
a new trial.” Hughes, 43 So. 3d at 531 (citing Amiker, 796 So. 2d at 946) (Roberts, J.,
specially concurring). And this Court concluded the predecessor trial judge, who sat through
6 trial and observed the witnesses first hand, was in a “superior position” to his successor, who
only had “a cold, printed record of a case.” Amiker, 796 So. 2d at 947-48.
¶18. This conclusion was based on the longstanding “recogni[tion] that the trial judge is
in the best position to view the trial.” Id. at 947. “The trial judge who hears the witnesses
live, observes their demeanor and in general smells the smoke of the battle is by his very
position far better equipped to make findings of fact which will have the reliability that we
need and desire.” Id. (quoting Gavin, 473 So. 2d at 955). By contrast, a successor judge,
who enters the fray after the battle, is “in no better position than this Court to do what this
Court does not do.” Id. at 948 (emphasis added). And what, according to Amiker, does this
Court not do? “This Court justifiably refuses to review grants of a new trial based in part on
the superior position of the trial court to decide such matters.” Id.
¶19. In now revisiting Amiker, we agree with Judge Roberts that the “thirteenth juror”
referred to the trial court—and the trial court alone. See Hughes, 43 So. 3d at 531-32
(Roberts, J., specially concurring). Thus, it was error in Bush to conflate our role as
appellate court with the trial court’s and to assume the role of “thirteenth juror” for ourselves
when reviewing the trial court’s grant or denial of a new trial. See Bush, 895 So. 2d at 844
n.2 (noting “when the trial court (and subsequently the appellate court) reviews a verdict that
is alleged to be against the overwhelming weight of the evidence, this presents a distinctive
situation which necessitates the court sitting as a ‘thirteenth juror’”).
¶20. To be clear, when reviewing a motion for new trial, neither this Court nor the Court
of Appeals “sits as thirteenth juror.” Bush, 895 So. 2d at 844. We do not make independent
7 resolutions of conflicting evidence. See id. Nor do we reweigh the evidence or make
witness-credibility determinations. Instead, “when the evidence is conflicting, the jury will
be the sole judge of the credibility of witnesses and the weight and worth of their testimony.”
Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980); see also Lenoir v. State, 222 So. 3d
273, 278 (Miss. 2017).
¶21. Our role as appellate court is to review the trial court’s decision to grant or deny a new
trial for an abuse of discretion. See Amiker, 796 So. 2d at 948 (citing Dorr v. Watson, 28
Miss. 383, 395 (1854) (“The granting a new trial rests in a great measure upon the sound
discretion of the court below, to be exercised under all the circumstances of the case with
reference to settled legal rules as well as the justice of the particular case. If a new trial be
refused, a strong case must be shown to authorize the appellate court to say that it was error;
and so, if it be granted, it must be manifest that it was improperly granted.”)). In carrying out
this task, we weigh the evidence in the light most favorable to the verdict, “only disturb[ing]
a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it
to stand would sanction an unconscionable injustice.” Lindsay v. State, 212 So. 3d 44, 45
(Miss. 2017) (quoting Bush, 895 So. 2d at 844).
¶22. Applying that standard here, we find no abuse of discretion in the trial court’s denial
of Little’s motion for a new trial. Viewing the evidence in the light most favorable to the
verdict, the trial court did not sanction an “unconscionable injustice” in ruling the judgment
must stand. Ellis positively identified Little as the robber from a photo lineup and again from
the witness stand. The conflicting portions of Ellis’s descriptions were thoroughly presented
8 to the jury. And obviously the jury resolved these conflicts and concluded beyond a
reasonable doubt that Little was the man who attacked Ellis, pointed a gun in his face, and
robbed him.
¶23. We thus reverse the judgment of the Court of Appeals. And we reinstate and affirm
the judgment of the Claiborne County Circuit Court, which convicted Little of armed robbery
and felon in possession of a weapon and sentenced him to concurrent sentences of thirty
years and ten years respectively.
¶24. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.
RANDOLPH, P.J., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. WALLER, C.J., AND ISHEE, J., NOT PARTICIPATING.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶25. I agree that, applying the appropriate standard of review, we must review the trial
court’s denial of a motion for a new trial for abuse of discretion and, considering the
evidence in the light most favorable to the verdict, we “will only disturb a verdict when it is
so contrary to the overwhelming weight of the evidence that to allow it to stand would
sanction an unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (Miss. 2005). But
I respectfully decline to accept the majority’s application of a new standard under which, on
review of the weight of the evidence, this Court never weighs the conflicting evidence. An
appellate court cannot determine whether a trial court correctly rejected a claim that a verdict
9 was against the overwhelming weight of the evidence without actually evaluating the weight
of the evidence – a process that necessarily involves consideration of witness credibility.
¶26. I would find that, due to the paucity of evidence against Little, this is one of the
exceptional cases in which the evidence preponderates so heavily against the verdict that the
Court must order a new trial to prevent a miscarriage of justice. Further, I would find that
plain error likewise demands a new trial. I would affirm the judgment of the Court of
Appeals that reversed the judgment of the Circuit Court of Claiborne County and remanded
for a new trial.
A. Appellate Review of a Claim That the Verdict Was Against the Overwhelming Weight of the Evidence
¶27. In Bush v. State, this Court announced the proper standards for review of the weight
of the evidence2 and the sufficiency of the evidence to “demonstrate the clear difference
between these issues.” Bush, 895 So. 2d at 843. The standard for weight of the evidence
articulated in Bush is, in its entirety, as follows:
When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So. 2d 948, 957 (Miss. 1997). We have stated that on a motion for new trial,
the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should
2 It has been said by the United States Supreme Court that “[t]he ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’” Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982).
10 be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So. 2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.
Bush, 895 So. 2d at 844. The Court then applied the standard to the facts of the case as
follows: “[s]itting as a limited ‘thirteenth juror’ in this case, we cannot view the evidence in
the light most favorable to the verdict and say that an unconscionable injustice resulted . . .
[t]he trial court therefore did not abuse its discretion in denying a new trial . . . .” Id. at 844-
45. The standard announced in Bush has been applied faithfully by our trial and appellate
courts to resolve arguments based on the weight of the evidence for more than twelve years.
¶28. As the majority recognizes, the “thirteenth juror” language derived from Amiker,
which discussed the standard of review applied by the trial judge to a claim that the verdict
was against the overwhelming weight of the evidence. Amiker held that a successor judge
had erred by vacating his predecessor’s order granting a new trial. Unlike an appellate judge
or a successor judge, the trial judge had sat through the trial, had heard the witnesses, had
observed their demeanors, and generally had “smelled the smoke of battle.” Amiker, 796 So.
2d 942, 947 (Miss. 2000). The Court said that, on a motion for a new trial, the court sits as
a thirteenth juror, the motion is addressed to the court’s discretion, and the court should grant
11 a new trial “only in exceptional cases in which the evidence preponderates heavily against
the verdict.” Id. (quoting U.S. v. Sinclair, 438 F.2d 50, 51 n.1 (5th Cir. 1971) (quoting
Wright, Federal Practice & Procedure: Criminal § 553, at 487)). A reading of Amiker
indicates that, in saying that “the court sits as a thirteenth juror,” the Court was referring to
the trial court, not the appellate court or a successor judge.
¶29. So, as a technical matter, the Court in Bush erred by relying on Amiker to find that,
on review of the trial court’s denial of a motion for a new trial challenging the weight of the
evidence, the appellate court sits as a thirteenth juror. But Bush made clear that the appellate
court’s standard of review of the trial court’s decision is abuse of discretion, not de novo.
Thus, it mattered little to post-Bush appellate review that the case directed an appellate court
to sit as a “thirteenth juror” because, in each case, the appellate court was required to defer
to the trial court’s exercise of discretion in resolving the question of whether the verdict was
against the overwhelming weight of the evidence.
¶30. Thus, removing the “thirteenth juror” standard from appellate review does little to
erode our established appellate authority to grant relief based on a claim that the trial court
erred by denying a motion for a new trial on the ground that the verdict was against the
overwhelming weight of the evidence. The trial court sits as the “thirteenth juror” and must
order a new trial only in those exceptional cases in which the evidence preponderates so
heavily against the verdict that to affirm would be to sanction an unconscionable injustice.
The evidence is to be viewed in the light most favorable to the verdict. And, as already
12 recognized in Bush, the appellate court reviews the trial court’s denial of a motion for a new
trial for abuse of discretion.
¶31. I also note that, in Bush, this Court provided further direction for appellate review of
the denial of a motion for a new trial based on the weight of the evidence. We correctly
determined that, in prior weight-of-the-evidence cases, “we erroneously [had] stated that
when reviewing the weight of the evidence, ‘the Court must accept as true the evidence
which supports the verdict,’ the Court ‘must accept as true the evidence favorable to the
State,’ and ‘[w]here there is conflicting testimony, the jury is the judge of the credibility of
the witnesses.’” Bush, 895 So. 2d 844 n.3. While these pronouncements of law are pertinent
in the context of reviewing the sufficiency of the evidence, they have no place in reviewing
the weight of the evidence. Id. In ruling on the sufficiency of the evidence, we will affirm
if, viewing the evidence in the light most favorable to the verdict, a rational jury could have
found that each essential element of the crime was proven beyond a reasonable doubt. Id. at
843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). In ruling on the weight of the evidence, the trial court must “weigh[] the evidence
and assess[] the credibility of the witnesses in reaching its conclusion that the jury verdict
was contrary to the weight of the evidence.” U.S. v. Robertson, 110 F.3d 1113, 1118 (5th
Cir. 1997).
¶32. And, in reviewing the trial court’s denial of a motion for a new trial based on the
weight of the evidence, the appellate court also must weigh the evidence and assess witness
credibility to arrive at a determination of whether the trial court’s ruling was an abuse of
13 discretion. This Court cannot, as the majority suggests, simply check the trial record for
conflicting evidence on each element of the crime and if such evidence is present, affirm the
trial court. That would amount to our ruling on the sufficiency of the evidence. Rather, we
must evaluate the weight of the evidence and the credibility of the witnesses as we undertake
a determination of whether the trial court’s ruling was an abuse of discretion. In order to
decide whether the trial court correctly weighed the evidence and made the right judgment
call, it is necessary that we weigh the evidence. Affirming based merely on the presence of
conflicting evidence in the record is a ruling on the sufficiency of the evidence, not its
weight.
¶33. For that reason, the majority errs by affirming this case based solely on the presence
of conflicting evidence in the record on the ground that it is the jury’s role to resolve
evidentiary conflicts. A challenge to the weight of the evidence, in which the trial judge must
assess witness credibility and actually weigh the evidence, obviously necessitates judicial
evaluation of the evidence before the jury. And on appellate review of the trial court’s
evaluation of the weight of the evidence, this Court also must evaluate the weight of the
evidence and the credibility of the witnesses to determine whether the trial court abused its
discretion by finding that the verdict was not so contrary to the overwhelming weight of the
evidence that allowing it to stand would sanction an unconscionable injustice. Of course,
reversal based on a conclusion that the verdict was against the overwhelming weight of the
evidence and that the trial court abused its discretion in denying a new trial is a rare event,
reserved for exceptional cases in which the evidence preponderates so heavily against the
14 verdict that an affirmance would result in an unconscionable injustice. Little’s case is one of
the few exceptional cases in which the verdict should not stand.
B. The verdict was against the overwhelming weight of the evidence.
¶34. The evidence against Little established that, in Port Gibson, Mississippi, on the
afternoon of October 31, 2013, nurse practitioner Danny Ellis was robbed after closing his
office for the day. Ellis testified that the robber had attacked him from behind and wrestled
him to the ground. Ellis swung his computer bag and struck the attacker’s left ear. Then, the
man stepped back, yelled “get on the ground,” and put his knee on Ellis’s chest, then aimed
a pistol at his face. Ellis testified that at this point he saw the face of his attacker, whom he
had never seen before. Ellis asked the man what he wanted, and the man replied that he
wanted Ellis’s wallet. Ellis gave it to him, and the man backed off. Then, the man stopped
a few feet away, aimed the gun at Ellis, flinched in a manner that made Ellis think he was
going to shoot him, and finally ran away.
¶35. Immediately, Ellis drove to the police station and reported the incident. Chief of
Police Calvin Jackson testified that Ellis described the suspect as a small black male wearing
all black clothing with a black hoodie over his head, and that the suspect was “twenty years
old or better.” Chief Jackson knew Little. Based on a tip from a confidential informant, Chief
Jackson included Little in a photographic lineup with seven other persons, although he did
not believe that Little fit the description Ellis had given. He presented the lineup to Ellis, who
identified Little as the robber. Because the police conducted no further investigation, Ellis’s
identification testimony was the sole evidence against Little.
15 ¶36. Although in January 2014, the grand jury no-billed the charges, the prosecution did
obtain an indictment against Little for armed robbery and possession of a weapon by a felon
in April 2014. The trial occurred less than a month later. Little’s request for a continuance
to locate witnesses was denied. Chief Jackson and Ellis testified for the State and the defense
called no witnesses; several potential defense witnesses either did not appear or could not be
located before the trial.
¶37. At the trial, Ellis acknowledged having given a description of the robber to Little’s
defense counsel in an audio recording. On the audio recording, Ellis had said that the robber
was muscular and stocky. Both Chief Jackson and Ellis admitted that Little is neither
muscular nor stocky. Ellis explained that he had given that description because, when the
robber had wrapped his arms around him, he was “solid as a rock.” He also said that the
robber had been clean shaven. Chief Jackson testified that, ordinarily, Little wore a goatee,
although he was unable to say whether Little had any facial hair at the time of his arrest.
Chief Jackson also testified that Little has gold teeth which are clearly visible when he talks.
He said that Ellis had never mentioned gold teeth in his description of the robber. When
asked about the gold teeth, Ellis admitted that the harrowing situation had hampered his
powers of observation, saying that he had not noticed anything about the robber’s mouth
because the robber had a .45 pistol aimed at his face.
¶38. In his testimony, Ellis admitted that the robber’s hoodie had been pulled down,
obscuring a portion of his face. Yet Ellis professed “no doubt” that the robber was Little. He
testified that he had identified Little from the photographic lineup based, in part, on Little’s
16 pronounced nasolabial folds, or facial creases. Little was the only person in the lineup who
had pronounced nasolabial folds. Ellis testified that he also identified Little based on his
eyes, because the robber’s eyes had been“scared-looking” and wide open, with a lot of white
showing. Ellis acknowledged that, in court, Little’s eyes were not opened wider than normal,
and in the lineup photograph, they were almost shut.
¶39. Little was found guilty, and the trial court sentenced him to thirty years for armed
robbery and ten years for possession of a weapon by a felon, to run concurrently. The Court
of Appeals reversed Little’s convictions upon a finding that the verdict was against the
overwhelming weight of the evidence because “the sole substantive proof presented at trial
was the testimony of the victim identifying the defendant, and the victim’s initial description
of the attacker to the police was inconsistent with that identification.” Little v. State, 2016
WL 6876506, at *3 (Nov. 22, 2016).
¶40. The majority affirms Little’s convictions on the basis that the trial court’s denial of
his motion for a new trial was not an abuse of discretion. The majority relies on the presence
of conflicting testimony in the record to affirm. But as explained above, it is vital to this
Court’s application of the proper standard of review to weight-of-the-evidence claims that
we not rely on the mere presence of conflicting testimony in the record, but that we also
evaluate the weight of the evidence to determine whether the trial court’s ruling was an abuse
of discretion.
¶41. Here, the trial court did abuse its discretion by denying the motion for a new trial. The
State’s sole evidence against Little was Ellis’s identification of him as the robber. But that
17 identification was manifestly unreliable. Ellis professed that the robber was “twenty years
old or better,” muscular and stocky, and clean shaven, while Little was thirty-nine years old,
neither muscular nor stocky, and habitually wore a goatee. And the robber wore a hoodie that
obscured a portion of his face. Chief Jackson acknowledged that Little’s appearance did not
match Ellis’s description of the robber. Ellis identified Little based on a photographic lineup
that was suggestive because Little was the only person in the lineup with pronounced
nasolabial folds. Absolutely no evidence connected Little with the crime besides Ellis’s
identification. Considering the evidence in the light most favorable to the State, the fact that
the only proof presented by the State was Ellis’s identification testimony, and his initial
description of the robber was strikingly inconsistent with Little’s actual appearance, I would
find that this case presents the exceptional instance in which an affirmance of the verdict
would amount to our sanctioning an unconscionable injustice. This case provides ample
cause for concern that an innocent man may be serving a substantial sentence for crimes that
he did not commit.
C. Chief Jackson’s testimony about the informant’s tip and improper closing argument demand reversal under the plain error doctrine.
¶42. Another troubling consideration leads me to conclude that this verdict must be
reversed. Chief Jackson testified that he had included Little in the photographic lineup based
on a tip from an informant. During closing argument, the prosecutor asked the jury to
consider the informant’s tip as additional substantive evidence that Little had committed the
crime. The prosecutor argued:
18 Calvin Jackson investigated it. He tells you he got an informant, a street committee. Street committee tells Calvin who does it, you know. So by that, Calvin doesn’t go arrest him on that because he has no evidence. So he takes a lineup, and I think it’s a fairly accurate lineup. But he puts Marlon in there because that’s who he’s been told did it. He takes it to Danny Ellis.
...
The man was in the picture lineup because Calvin Jackson was told that’s who did it.
Defense counsel did not object to this argument, nor did the defense ever request a limiting
instruction to prevent the jury’s use of the informant’s tip as substantive evidence of guilt.
¶43. “‘Hearsay’ means a statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement.” M.R.E. 801(c). We have held that “[t]he conversation of
an informant is generally inadmissible as hearsay where it is a part of the State’s development
of its proof on the merits in a criminal case, but not in other circumstances where probable
cause for an arrest or search is at issue.” Swindle v. State, 502 So. 2d 652, 657 (Miss. 1987).
But “an informant’s tip is admissible to the extent required to show why an officer acted as
he did and was at a particular place at a particular time.” Id. at 657-58. Admission of an
informant’s tip for the truth of the matter asserted when the informant is unavailable for
cross-examination is a violation of the Confrontation Clauses of the United States
Constitution and the Mississippi Constitution. U.S. Const. amend. VI; Miss. Const. art. 3,
§ 26.
¶44. While the purpose of Chief Jackson’s testimony about the unknown informant’s tip
may have been to show why he included Little in the lineup despite the fact that Little’s
19 physical description did not match Ellis’s description of the robber, the impact of the
testimony was to bolster Ellis’s identification of Little. Doubtlessly, had defense counsel
lodged Confrontation Clause and hearsay objections to this testimony, the trial court should
have sustained the objections or at least excluded the testimony as more prejudicial than
probative under Mississippi Rule of Evidence 403. Compounding the error, in closing
argument, the prosecutor improperly encouraged the jury to consider the informant’s tip as
substantive evidence of Little’s guilt. Because the entire case turned on identification
evidence and the only substantive evidence identifying Little was Ellis’s testimony, this
argument falsely informed the jury that the “informant’s tip” testimony functioned as
additional substantive evidence identifying Little as the culprit.
¶45. While the prosecutor is allowed to comment on the evidence and draw proper
deductions and inferences from the facts, the prosecutor cannot “appeal to the prejudices of
[jurors] by injecting prejudices not contained in some source of the evidence.” Wilson v.
State, 194 So. 3d 855, 864 (Miss. 2016) (quoting Sheppard v. State, 777 So. 2d 659, 661
(Miss. 2000)). Attorneys are permitted wide latitude in closing argument, but “prosecutors
are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably
calculated to unduly influence the jury.” Sheppard, 777 So. 2d at 661. When faced with a
potential instance of lawyer misconduct during closing arguments, this Court inquires
“whether the natural and probable effect of the improper argument is to create unjust
prejudice against the accused so as to result in a decision influenced by the prejudice so
created.” Galloway v. State, 122 So. 3d 614, 643 (Miss. 2013).
20 ¶46. In this case, where the sole evidence against Little was Ellis’s identification, the
closing argument encouraging the jury to consider the informant’s tip as further identification
evidence was unjustly prejudicial and created the likelihood of a conviction that rested in
significant part upon inadmissible hearsay. But because Little did not object to the admission
of the informant’s tip or to the prosecutor’s closing argument, or raise either issue on appeal,
this issue obviously would be procedurally barred from appellate review. However, “[u]nder
the plain-error doctrine, we can recognize obvious error which was not properly raised by the
defendant . . . and which affects a defendant’s ‘fundamental, substantive right.’” Conners
v. State, 92 So. 3d 676, 682 (Miss. 2012) (quoting Smith v. State, 986 So. 2d 290, 294 (Miss.
2008)). For application of the plain error doctrine, there must have been an error that caused
a manifest miscarriage of justice or “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Conners, 92 So. 3d at 682 (quoting Brown v. State, 995
So. 2d 698 (Miss. 2008)). I would find that, because the sole evidence against Little was
Ellis’s identification, the admission of the informant’s tip as additional substantive
identification evidence, along with the prosecutor’s closing argument that encouraged the
jury to consider the informant’s tip as further substantive identification evidence, a plain
error occurred that caused a manifest miscarriage of justice and undermines the fairness,
integrity, and public reputation of judicial proceedings.
¶47. Not only was the verdict against the overwhelming weight of the evidence, but plain
error resulted from the admission of the informant’s tip and improper closing argument. I
21 would affirm the judgment of the Court of Appeals that reversed Little’s convictions and
remanded for a new trial.
KING, J., JOINS THIS OPINION.