       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-KA-01505-COA

MARLON LITTLE                                                            APPELLANT

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        09/02/2014
TRIAL JUDGE:                             HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:               CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: W. DANIEL HINCHCLIFF
                                             NICKITA SHANTA BANKS
ATTORNEYS FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                         BY: JOSEPH SCOTT HEMLEBEN
                                             JASON L. DAVIS
                                             BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                       ALEXANDER C. MARTIN
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF ARMED ROBBERY, AND
                                         SENTENCED TO THIRTY YEARS; AND
                                         CONVICTED OF FELON IN POSSESSION
                                         OF A FIREARM, AND SENTENCED TO
                                         TEN YEARS, WITH THE SENTENCES TO
                                         RUN CONCURRENTLY IN THE CUSTODY
                                         OF THE MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS
DISPOSITION:                             REVERSED AND REMANDED FOR A NEW
                                         TRIAL - 11/22/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

      GREENLEE, J., FOR THE COURT:

¶1.   Marlon Little appeals his convictions for armed robbery and felon in possession of a
firearm. At trial, the only substantive evidence presented by the State was the victim’s

eyewitness testimony. Little argues that the victim’s initial description of the assailant to

police was so inconsistent with Little’s actual physical attributes that the verdict was against

the weight of the evidence, requiring reversal. We agree and reverse and remand for a new

trial.

                         FACTS AND PROCEEDINGS BELOW

¶2.      On October 31, 2013, nurse practitioner Danny Ellis was robbed at gunpoint shortly

after closing his Port Gibson office for the day. Ellis testified that the robber jumped him

from behind and wrestled him to the ground. Ellis hit the attacker in the side of the head with

his laptop. The robber put his knee in Ellis’s chest and held a pistol to his face, demanding

his wallet. The man was wearing a hoodie with the string pulled tight across his chin. The

upper portion of the hoodie obscured a portion of the attacker’s face. Ellis had never seen the

man before. After the man took Ellis’s wallet and left, Ellis walked to the police station and

reported the robbery to Port Gibson’s chief of police, Calvin Jackson. Initially, Ellis

described the man who attacked him as a clean-shaven, stocky African American male in his

mid-to-late twenties.

¶3.      The police received a tip from an informant identifying Little as a suspect. Based on

this tip, Jackson, who was familiar with Little, put together a seven-photo lineup on

November 4, 2013, to show to Ellis. Ellis identified the man in the fourth photo, Little, as the

man who had robbed him. Ellis testified that he recognized Little in part because the attacker

had pronounced nasolabial folds. Little was the only person in the photo lineup with



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pronounced nasolabial folds. Little is forty years old, tall and thin, with gold teeth, and

normally wears a goatee. The police did not conduct any investigation other than presenting

Ellis with the photo lineup. The gun and the wallet were never recovered.

¶4.    Little was indicted in April 2014.1 The trial was held less than a month later on May

13, 2014. The morning of trial, the court denied a previously filed defense motion for a

continuance requesting more time to find Little’s alibi witness. A subpoena for the witness

was issued the day before trial. Little’s attorney also argued in the motion to continue that

her contact with her client had been limited due to his being committed to a transitional home

by his parole officer, and that more time was needed to prepare a defense.

¶5.    Police Chief Jackson testified for the State, recounting the course of the police

investigation. Ellis testified for the State, identifying Little as the person who had robbed him

at gunpoint. The defense did not call any witnesses. Several witnesses the defense had

intended to call either did not show or could not be found in time for trial.

¶6.    Little’s motion for a new trial was denied. He appeals.

                                        DISCUSSION

¶7.    The sole argument Little makes on direct appeal is that the evidence against him was

so minimal and contradictory that his conviction was against the weight of the evidence,

requiring reversal.2 “When reviewing a denial of a motion for a new trial based on an


       1
           In January 2014, the grand jury initially no-billed the charges.
       2
         The brief filed by Little’s attorney notes that several arguments, such as ineffective
assistance of counsel, would be best preserved for postconviction-relief review in the event
that Little’s conviction were affirmed on direct appeal. Little filed a supplemental pro se
brief raising multiple issues (including an alibi defense), all of which would not be

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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.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). The Court

sits as a “thirteenth juror,” and if it “disagrees with the jury’s resolution of the conflicting

testimony,” the proper remedy is to grant a new trial. Id. “[T]he evidence should be weighed

in the light most favorable to the verdict.” Id.

¶8.    The testimony of an uncorroborated witness can be sufficient to sustain a conviction.

Renfro v. State, 118 So. 3d 560, 565 (¶22) (Miss. 2013); Pritchett v. State, 134 So. 3d 857,

860-61 (¶11) (Miss. Ct. App. 2014) (finding the preponderance of the evidence did not weigh

heavily against the jury’s verdict where the victim immediately recognized the defendant in

a photographic lineup and had accurately described the defendant’s appearance to a detective

prior to being shown the lineup). However, the reliability of an eyewitness identification is

lessened when the description initially given to police is inconsistent with the subsequent

lineup identification of a defendant. See Williams v. State, 98 So. 3d 468, 472 (¶16) (Miss.

Ct. App. 2012) (the factors used to determine reliability of a lineup identification include the

accuracy of a witness’s prior description of the criminal).

¶9.    In Bush, a victim initially told police that the masked man who had robbed the

convenience store she worked at had a slit above his left eye and that he might have a gold

tooth. Bush, 895 So. 2d. at 841 (¶8). She later identified the defendant, Bush, as the robber,

even though Bush did not have a scratch or scar above his left eye and did not have a gold



appropriate for review on direct appeal.

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tooth. Id. The Mississippi Supreme Court stated that “[w]ere this conflicting evidence the

only substantive proof the State presented to the jury, perhaps Bush’s argument for a new

trial would have merit.” Id. at 845 (¶19). However, additional evidence against Bush

included the eyewitness testimony of a coconspirator, a purported unrecorded confession

Bush made to police, and a security video consistent with the version of events told by the

victim, the coconspirator, and Bush in his purported confession. Id.

¶10.   Similar to the testifying victim in Bush, the victim here gave an initial description of

the assailant that was inconsistent with the defendant’s actual physical attributes, including

age and build. But unlike in Bush, the State here presented no substantive proof to support

Little’s guilt other than the victim’s testimony identifying Little as the assailant. We have

here the exact situation the Mississippi Supreme Court identified as potentially meritorious

in Bush.

¶11.   We find, on the facts of this case, that the weight of the evidence preponderates

heavily against the verdict where 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. We therefore reverse and

remand for a new trial.

                                      CONCLUSION

¶12.   Because the only substantive proof presented at trial of Little’s guilt was the victim’s

identification of Little, and that identification was inconsistent with the initial description

given to police, we find that the verdict was against the weight of the evidence and that a new



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trial is warranted. We therefore reverse and remand.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY
IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO CLAIBORNE COUNTY.

     LEE, C.J., IRVING, P.J., BARNES, ISHEE AND CARLTON, JJ., CONCUR.
GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
FAIR AND WILSON, JJ. JAMES, J., NOT PARTICIPATING.

       GRIFFIS, P.J., DISSENTING:

¶14.   The majority, sitting as a “thirteenth juror,” has determined that an eyewitness’s

testimony is not sufficient evidence to sustain the jury’s verdict to convict Little. The

decision to remand could present a unique dilemma for the trial judge. Suppose that on

remand, just before a new trial is held, the prosecutor and the defense attorney meet with the

trial judge and say: “Your Honor, we have the exact same evidence to offer at this trial as the

last. Based on the Court of Appeals’ ruling, if the same evidence results in a guilty verdict,

you will be obligated to grant a new trial.” They would be right. This case could be retried

until a jury acquits the defendant. Thus, I am puzzled by the majority’s decision to remand

the case for a new trial.

¶15.   Nevertheless, I disagree with the majority’s decision to reverse Little’s conviction.

First, I address the standard of review. Second, I address my analysis.

¶16.   I disagree with using the “thirteenth juror” rationale in the standard of review. In

Hughes v. State, 43 So. 3d 526 (Miss. Ct. App. 2010), I joined Judge Larry Roberts’s

specially concurring opinion. Judge Roberts, who was a very experienced circuit judge,

addressed his concern with “the often-used characterization of an appellate court’s role when


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reviewing the weight of the evidence — namely our self-assigned role of the ‘thirteenth

juror.’ It is a moniker I could not disagree with more.” Id. at 530 (¶16) (Roberts, J.,

specially concurring). Judge Roberts reasoned:

      My review of this state’s jurisprudence on the matter shows that the first
      appearance of “thirteenth juror” used by a Mississippi appellate court in the
      context of an appellate court’s role in a review of the weight of the evidence
      was in McQueen v. State, 423 So. 2d 800 (Miss. 1982). In McQueen, the
      Mississippi Supreme Court quoted a lengthy passage from Tibbs v. Florida,
      457 U.S. 31 (1982), in which the United States Supreme Court discussed the
      procedural consequences and differences between reversing a conviction based
      upon insufficiency of the evidence and the weight of the evidence. McQueen,
      423 So. 2d at 803-04 (quoting Tibbs, 457 U.S. at 41-45). In so doing, the
      Supreme Court stated that “a reversal based upon the weight of the evidence,
      unlike a reversal based on insufficient evidence, does not mean that acquittal
      was the only proper verdict. Instead, the appellate court sits as a ‘thirteenth
      juror’ and disagrees with the jury’s resolution of the conflicting testimony.”
      Tibbs, 457 U.S. at 42. Post McQueen, the phrase was bounced around in the
      opinions of the supreme court, and later, this Court, before ultimately settling
      as a favorable description of an appellate court’s role. But the Supreme Court
      never used the phrase “thirteenth juror” again.

      Nine years after McQueen was handed down, the supreme court again used the
      phrase. However, this time it was much less favorable and tended to disagree
      with Tibbs. The supreme court stated: “The appellate court’s role is to see that
      there is a fair trial given to both sides. We are not result oriented. The supreme
      court will not be the thirteenth juror.” Walker v. Graham, 582 So. 2d 431, 433
      (Miss. 1991). This sentiment was continued over the next several years as
      “thirteenth juror” was singularly used in a number of dissents in a negative
      connotation describing the role the dissenting author believed the majority was
      incorrectly filling. See Crain v. Cleveland Lodge 1532, Order of Moose, Inc.,
      641 So. 2d 1186, 1193 (Miss. 1994) (McRae, J., dissenting); Lloyd Wood
      Constr. Co., Inc. v. Little, 623 So. 2d 968, 974 (Miss. 1993) (McRae, J.,
      dissenting); Stonecipher v. Kornhaus, 623 So. 2d 955, 967-68 (Miss. 1993)
      (McRae, J., dissenting); New Hampshire Ins. Co. v. Sid Smith & Assocs., Inc.,
      610 So. 2d 340, 348 (Miss. 1992) (McRae, J., dissenting); State Highway
      Comm'n of Miss. v. Hyman, 592 So. 2d 952, 958 (Miss. 1991) (McRae, J.,
      dissenting).

      Then, in Allen v. State, 749 So. 2d 1152, 1159 (¶19) (Miss. Ct. App. 1999),

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this Court, reciting the standard of review utilized when reviewing a denial of
a motion for a new trial, stated that: “It has been said that on a motion for new
trial the trial court sits as a thirteenth juror. The motion, however, is addressed
to the discretion of the trial court.” This language and standard, implying that
the trial court is the theoretical “thirteenth juror,” was echoed time and time
again.

This all led us to the current use of the term as first penned in Bush v. State,
895 So. 2d 836 (Miss. 2005). There the supreme court quoted Amiker v. Drugs
For Less, Inc., 796 So. 2d 942 (Miss. 2000) and stated: “On a motion for a
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 be invoked only in exceptional cases in
which the evidence preponderates heavily against the verdict.” Bush, 895 So.
2d at 844 (¶18). This passage was interpreted for the proposition that “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.” Id. at 844 n.2. The Bush court, labeling itself as a “thirteenth juror,”
then resolved the issue of whether Kanynne Jamol Bush’s conviction was
supported by the weight of the evidence by beginning its conclusion with
“sitting as a limited ‘thirteenth juror’ in this case.” Id. at (¶19). But Amiker
simply does not mandate or otherwise suggest that it is proper for an appellate
court to sit, review the evidence, and make a judgment call of credibility and
other matters germane to the role of a juror.

In Amiker, the central issue was whether a successor judge could vacate his
predecessor’s order granting a new trial. Amiker, 796 So. 2d at 946 (¶8). In
arriving at the conclusion, the supreme court in Amiker stated:

       It has long been recognized that the trial judge is in the best
       position to view the trial. “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.” Gavin v. State, 473 So. 2d 952, 955 (Miss.
       1985). Using a cold, printed record of a case, if that, a successor
       judge sits in an inferior position to the judge who presided over
       the trial of the case.

Id. at 947 (¶16). Further, it was identified that:



                                        8
       If we allowed a successor judge to change a decision granting a
       new trial, we would invest power in one in no better position
       than this Court to do what this Court does 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.
       Dorr v. Watson, 28 Miss. 383, 395 (1854) (“The granting [of] 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.”). See also Rayner v. Lindsey, 243 Miss.
       824, 832-33, 138 So. 2d 902, 905-06 (1962). Surely, a
       successor trial judge is in no better position than this Court.

Id. at 948 (¶21). I do not find these pronouncements can form the basis for the
establishment of an appellate court as a “thirteenth juror” when reviewing the
denials of motions for a new trial as surmised in Bush and utilized in the litany
of cases following it (including cases from this Court—some even authored by
myself). In fact, Amiker successfully pleads the case for the alternative and
only reestablishes that it is the trial court alone that can fill the role of
“thirteenth juror.”

The role of an appellate court when reviewing the denial of a motion for a new
trial is, simply stated, to determine whether the trial court abused its discretion
in doing so. Sheffield v. State, 749 So. 2d 123, 127 (¶16) (Miss. 1999). This
is so for the exact reasons expounded in Amiker. It is the trial judge who sits
and observes the evidence and witnesses’ demeanor throughout the trial; who
hears the witnesses’ testimonies; and who, ultimately, is the closest thing a trial
has to a “thirteenth juror.” That title and point of view are simply
inappropriate for an appellate court armed only with “a cold, printed record of
a case.”

My last point goes to the realistic ramifications of a reversal by an appellate
court of a trial court’s denial of a motion for a new trial. As touched upon in
Justice White’s dissent in Tibbs, given an appellate court’s reversal on the
weight of the evidence, “the defendant has already demonstrated that a
conviction based on the State’s case, as so far developed, is ‘against the weight
of the evidence.’” Tibbs, 457 U.S. at 50 (White, J., dissenting). Therefore, the
State and trial court are put in a precarious situation on remand. Assuming the
State chooses to prosecute again, with no better or worse evidence at its

                                        9
       disposal, and the defense does not make any substantive changes in its
       presentation of evidence or trial strategy, and the same result occurs, by the
       “rule of the case,” the trial court is all but required to grant a second new trial.
       If not, when the defendant appeals his conviction arguing that the weight of
       the evidence is not sufficient and, of course, cites the reversal of his previous
       conviction as authority, an appellate court would similarly have no choice but
       to reverse and remand once more or be guilty of intellectual dishonesty.

       The majority in Tibbs argues otherwise stating in response to Justice White’s
       dissent that:

              Although reversal of a first conviction based on sharply
              conflicting testimony may serve the interests of justice, reversal
              of a second conviction based on the same evidence may not.
              While the interests of justice may require an appellate court to
              sit once as a thirteenth juror, that standard does not compel the
              court to repeat the role.

       Tibbs, 457 U.S. at 43 n.18. However, in my opinion, this line of reasoning
       does nothing more than muddle and dilute the standard of review that an
       appellate court must apply. If there have been no substantive changes from
       one trial to the next and the same outcome is reached by a second jury, a
       failure on an appellate court’s part to, once again, remand the case for a new
       trial can be viewed as nothing more than arbitrary and capricious. Quite
       clearly, all other things equal, if the weight of the evidence would not support
       a finding of guilt after the first conviction, the same evidence, when presented
       during subsequent trials, must still be deemed inadequate to support a
       conviction. Contrary to the statement quoted from Tibbs above, our role as an
       appellate court does not change.

       Therefore, I respectfully suggest to the members of our appellate judiciary that
       we are not, and can never be, the hypothetical “thirteenth juror.” The closest
       judicial entity identifiable as a possible “thirteenth juror” must be the trial
       judge. When we review a claim on appeal that the verdict is contrary to the
       weight of the evidence, we simply determine based upon the cold record
       whether the trial judge abused his discretion. Nothing more, nothing less.

Hughes, 43 So. 3d at 530-33 (¶¶17-25) (Roberts, J., specially concurring).

¶17.   If these are the correct criteria to review a motion for a new trial, we should ask why

the “thirteenth juror” analysis is not also part of the standard of review in civil cases. For

                                               10
example, in White v. Yellow Freight System, Inc., 905 So. 2d 506, 510-11 (¶7) (Miss. 2004),

the supreme court considered a motion for a new trial and did not include a “thirteenth juror”

discussion:

       A motion for a new trial falls within a lower standard of review than does that
       of a judgment notwithstanding the verdict or a directed verdict. [Janssen
       Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 55 (Miss. 2004)]. Rule 59 of the
       Mississippi Rules of Civil Procedure authorizes the trial judge to set aside a
       jury verdict as to any or all parts of the issues tried and to grant a new trial
       whenever . . . justice requires. M.R.C.P. 59 cmt. The grant or denial of a
       motion for a new trial is a matter within the trial court’s sound discretion.
       Green v. Grant, 641 So. 2d 1203, 1207 (Miss. 1994). A new trial may be
       granted in a number of circumstances, such as when the verdict is against the
       substantial or overwhelming weight of the evidence. Shields v. Easterling, 676
       So. 2d 293, 298 (Miss. 1996); see also URCCC 10.05(2)[.] On appeal, this
       Court may reverse the granting of a new trial only when the trial court has
       abused its discretion. Green, 641 So. 2d at 1207. The existence of trial court
       discretion, as a matter of law and logic, necessarily implies that there are at
       least two differing actions, neither of which if taken by the trial judge will
       result in reversal. Shields, 676 So. 2d at 298. In reviewing the trial court’s
       decision, an appellate court must consider the credible evidence in the light
       most favorable to the non-moving party and generally take the credible
       evidence supporting the claims or defenses of the non-moving party as true.
       Green, 641 So. 2d at 1207. When the evidence is so viewed, this Court will
       reverse only when, upon review of the entire record, we are left with a firm
       and definite conviction that the verdict, if allowed to stand, would work a
       miscarriage of justice. Id. at 1207-08.

¶18.   When we review this case on an abuse-of-discretion standard, I find that the

eyewitness’s testimony was sufficient. I do not find the verdict to be so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice. Bush, 895 So. 2d at 844 (¶18). I would affirm Little’s conviction.

For these reasons, I dissent.

       FAIR AND WILSON, JJ., JOIN THIS OPINION.



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