        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-KA-00595-COA

DEDRICK SMALL                                                             APPELLANT

v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                         04/13/2016
TRIAL JUDGE:                              HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED:                TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
DISTRICT ATTORNEY:                        BRENDA F. MITCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 08/15/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Dedrick Small was convicted of aiding and abetting Cortez Bass in the murder of

Donterrius Jackson. On appeal, Small argues that the trial judge abused his discretion by

excluding a prior statement by Bass, who was convicted in a separate trial. The judge ruled

that Bass’s statement, which tended to exculpate Small, was inadmissible hearsay. Small

argues that the statement was admissible as a statement against Bass’s penal interest.

However, we conclude that the trial judge did not abuse his discretion by excluding the

statement, as it was neither against Bass’s penal interest nor supported by corroborating
circumstances. Therefore, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Around 5 p.m. on March 10, 2014, Jackson and his friend George Anderson were

walking near the intersection of Cotton Street and Beat Line Road in Tunica. Jackson and

Anderson were in high school at the time and were out of school on spring break. Jackson

and Anderson encountered Small, Bass, and Bass’s cousin, Kendrick. When the two groups

met at the street corner, words were exchanged, and it appeared that a fight was imminent.

Bass then shot Jackson in the back of the head, killing him.

¶3.    Law enforcement quickly identified Bass as a suspect and arrested him. Bass gave

a statement to Detective James Clark of the Tunica County Sheriff’s Office. Bass admitted

that he shot Jackson, but he claimed that Jackson pulled a gun on him first.1 Detective Clark

asked Bass if Small had given him the gun that he used to kill Jackson, but Bass denied that

Small had done so. Bass insisted that the gun was his, but he did not know what kind of gun

it was and could only say that he bought it from an unknown man for $100. Bass claimed

that, a short time before the shooting, Jackson or Anderson had called him a “bitch.”2 Bass

also claimed that someone had shot at him the night before. Bass said that he returned home

and retrieved his gun after his first encounter that day with Jackson and Anderson.



       1
        Other witnesses denied that Jackson pulled a gun, and Jackson’s hands tested
negative for gunshot residue.
       2
         Anderson and another witness at Bass’s trial testified that, earlier the same day, Bass
had been driving a car and had attempted to run over Jackson and Anderson as they were
walking down the street. Small was a passenger in the car. There was no testimony about
this incident at Small’s subsequent separate trial.

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¶4.    Although Bass denied it, other witnesses reported that Small handed Bass the gun just

before the shooting, and Bass and Small were both indicted for Jackson’s murder. Prior to

trial, Small filed a motion to sever. The trial judge reserved ruling on the motion. A joint

trial began on June 9, 2015. After the State rested, Bass testified in his own defense and

claimed—contrary to what he had told Detective Clark—that Small handed him the gun just

before he shot Jackson. After Bass’s testimony, the trial judge granted Small’s motion to

sever. The State called Detective Clark on rebuttal to impeach Bass’s testimony. Detective

Clark testified that Bass had told law enforcement that he brought the gun to the scene and

that Small did not hand him the gun prior to the shooting. The jury convicted Bass.

¶5.    Before Small’s subsequent separate trial, Small filed a motion to permit him to use

Bass’s statement to Detective Clark as evidence at trial. Small argued that Bass’s statement

was admissible under Mississippi Rule of Evidence 804(b)(3) as a statement against interest.

The trial judge denied Small’s motion after finding that Bass’s statement was not against his

interest because Bass’s statement was a claim of self-defense.

¶6.    Bass did not testify at Small’s trial. Two eyewitnesses testified that Bass shot Jackson

with a gun that Small handed to him immediately before shots were fired. The defense called

another eyewitness who testified that she did not see Small hand Bass a gun; however, she

also testified that she did not see Bass pull the gun or “where [he got] the gun from.” The

defense called another witness who drove up just as Bass stepped into the street and shot

Jackson; the witness testified that she did not see Small, but she also testified that she did not

see anything that occurred before Bass stepped into the street. No evidence was introduced



                                                3
at Small’s trial that Jackson fired first or that the killing was in self-defense.

¶7.    The jury found Small guilty of first-degree murder. Because Small did not pull the

trigger and was fourteen years old at the time of the offense, the trial judge sentenced him

to life imprisonment with the possibility of parole. See Miller v. Alabama, 567 U.S. 460

(2012); Graham v. Florida, 560 U.S. 48 (2010). Small filed a timely notice of appeal. On

appeal, he raises only one issue: whether the trial judge abused his discretion by excluding

Bass’s post-arrest statements.

                                         ANALYSIS

¶8.    Small argues that he was entitled to introduce Bass’s statements that Bass alone

brought the gun to the street corner where Jackson was shot and that Small did not hand the

gun to Bass. Small argues that Bass’s post-arrest statement was against Bass’s penal interest

because Bass stated that he retrieved the gun after he exchanged words with Jackson, which,

Small argued, tended to show premeditation by Bass. However, the trial judge found that

Bass’s statement to Detective Clark was that he shot Jackson only after Jackson first fired

at him, i.e., a claim of self-defense. Thus, the trial judge reasoned that Bass’s statement was

an attempt to articulate a defense to criminal liability, not a statement against Bass’s penal

interest. Accordingly, the judge ruled that the statement was not admissible under the Rule

804(b)(3) exception to the hearsay rule.

¶9.    In his statement to Detective Clark, Bass said that on the day of the shooting, Jackson

and Anderson had called him a “bitch.” Bass went home, got a soda and some chips, and

then stood outside talking with Small and Kendrick. The three then walked to the corner of



                                                4
Cotton Street and Beatline Road, where they encountered Jackson and Anderson. Words

were exchanged, and Bass claimed that Jackson drew a gun and started shooting, so he

returned fire. When asked who gave him the gun, Bass said, “Nobody. I already had it

myself.” Bass stated that he kept the gun under his mattress, although he did not know the

make or model of the gun and claimed that he bought it for $100 from an unknown man.

Bass said he went home and retrieved the gun just before the shooting occurred. Bass was

specifically asked whether Small had given him the gun, but Bass repeatedly denied that

Small had done so. Bass was also adamant that Jackson had fired at him first.

¶10.   Small argues that the totality of Bass’s statement to law enforcement—that Bass

retrieved the gun after exchanging words with Jackson and Anderson—was against Bass’s

penal interest because it tends to show premeditation. Small also argues that no reasonable

person would claim to have retrieved a gun because he anticipated possible trouble if, in fact,

someone handed him the gun only after trouble presented itself. However, the State argues,

and the trial judge agreed, that Bass’s statement is still a claim of self-defense that, if true,

would tend to eliminate or reduce his criminal liability.

¶11.   “This Court reviews the trial court’s ruling admitting or excluding evidence for abuse

of discretion.” Hartfield v. State, 161 So. 3d 125, 130 (¶10) (Miss. 2015). We will not

reverse a conviction based on an erroneous evidentiary ruling “unless the error affected a

substantial right of [the defendant].” Id. (citing M.R.E. 103(a)).

¶12.   There is no dispute that Bass’s statement to law enforcement was hearsay and, as such,

was inadmissible absent some exception. M.R.E. 802. Rule 804 provides exceptions to the



                                               5
hearsay rule that apply “if the declarant is unavailable as a witness.” Small sought to

introduce Bass’s statement under Rule 804(b)(3), which provides that hearsay is admissible

if, “at the time of its making,” the statement “so far tended to subject [the declarant] to . . .

criminal liability . . . that a reasonable man in his position would not have made the statement

unless he believed it to be true.”3 Rule 804(b)(3) further provides that “[a] statement tending

to expose the declarant to criminal liability and offered to exculpate the accused is not

admissible unless corroborating circumstances clearly indicate the trustworthiness of the

statement.” Thus, to summarize, three requirements must be met before a “statement against

interest” may be admitted under this rule: (1) the declarant must be unavailable; (2) the

statement must have clearly subjected the declarant to criminal liability; and (3)

“corroborating circumstances” must “clearly indicate the [statement’s] trustworthiness.”

¶13.   As to the first requirement, although Bass had not been subpoenaed for Small’s trial,

the trial judge assumed, for purposes of ruling on Small’s pretrial motion, that Bass would

invoke his Fifth Amendment privilege to refuse to testify if called as a witness at trial. The

judge also accepted that this would render Bass “unavailable” for the purposes of Rule 804.

See Jacobs v. State, 870 So. 2d 1202, 1208 (¶13) (Miss. 2004).

¶14.   To determine whether Bass’s statement was clearly against his penal interest, we must

determine whether “a reasonable person in [his] position would not have made the statement

unless believing it to be true.” Hartfield, 161 So. 3d at 136 (¶15) (quoting Williams v. State,

       3
        Throughout this opinion, we quote the version of Rule 804(b)(3) in effect at the time
of Small’s trial. The rule was amended in 2016 as part of a “general restyling” of the
Mississippi Rules of Evidence, but the changes were “intended to be stylistic only.” M.R.E.
804, advisory committee’s note.

                                               6
667 So. 2d 15, 19 (Miss. 1996), overruled on other grounds by Smith v. State, 986 So. 2d

290, 298 n.4 (Miss. 2008)). The party offering such a statement must show that it “clearly

and directly implicates the declarant himself in criminal conduct.” Id. (quoting Williams, 667

So. 2d at 19). “The determination of whether a statement is against the declarant’s penal

interest must be made by considering the statement in light of the surrounding

circumstances.” Id. (citing Williamson v. United States, 512 U.S. 594, 604 (1994)).

¶15.   On review, we cannot say that the trial judge abused his discretion in finding that the

against-penal-interest exception to the hearsay rule did not apply. In general, a declarant’s

statement that he shot the victim in self-defense is not admissible because the statement

constitutes a defense to criminal liability. Therefore, it cannot be said that the statement “so

far tend[s] to subject [the declarant] to . . . criminal liability . . . that a reasonable man in his

position would not have made the statement unless he believed it to be true.” M.R.E.

804(b)(3); see Bailey v. State, 78 So. 3d 308, 318 (¶31) (Miss. 2012) (holding that the

defendant’s statement that he shot the victim “out of fear for [his] own life” was not

admissible because it was not against his penal interest); Robinson v. State, 758 So. 2d 480,

487 (¶25) (Miss. Ct. App. 2000) (holding that “a claim of self-defense” is not admissible

under Rule 804(b)(3) because it “is clearly not a statement against interest”); cf. Hartfield,

161 So. 3d at 136-37 (¶16) (holding that letters in which the declarant claimed that she had

participated in crimes under duress were not against her penal interest).

¶16.   Small argues that these cases do not apply to Bass’s specific statements that tended

to exculpate Small. Small argues that even if Bass’s overall claim of self-defense was not



                                                 7
against his penal interest, Bass’s specific denials that Small handed him the gun were against

his interest. Small reasons that these specific statements tend to show premeditation and

planning on Bass’s part.

¶17.   We disagree that Bass’s statement must or should be parsed so finely. Bass’s claim

was that he went home and retrieved the gun from his house because he feared that there

would be trouble with Jackson and Anderson. His alleged fear seems to have been based on

his prior encounter with Jackson and Anderson, some alleged shooting the night before, or

both. Regardless, Bass’s claim that he retrieved the gun based on this fear was part and

parcel of his self-defense narrative. In context, Bass’s statements that he retrieved the gun,

that the gun was his, and that Small did not give him the gun did not “so far tend[] to subject

[him] to . . . criminal liability . . . that a reasonable man in his position would not have made

the statement[s] unless he believed [them] to be true.” M.R.E. 804(b)(3). Therefore, the trial

judge did not abuse his discretion by excluding the statements.

¶18.   Moreover, even if Bass’s statement had been against his interest, Small failed to show

that the statement’s “corroborating circumstances clearly indicate [its] trustworthiness.”

M.R.E. 804(b)(3). “Corroboration as required by Rule 804(b)(3) is not required to be

absolute, and the sufficiency of the corroboration must be assessed in the light of the

importance of the evidence and the offeror’s fundamental constitutional right to present

evidence.”    Lacy v. State, 700 So. 2d 602, 607 (¶15) (Miss. 1997).             However, the

circumstances under which the statement is made or some other evidence must provide

sufficient corroboration to show that the statement is reliable and trustworthy. See id. at



                                               8
(¶¶16-17). The statement’s trustworthiness must be “clearly indicate[d].” M.R.E. 804(b)(3).

“Unless such a statement can be corroborated as reliable, it will be excluded.” Id., cmt.

¶19.   In the present case, there are no circumstances or other evidence to clearly indicate

the reliability or trustworthiness of Bass’s statement.       To the contrary, the relevant

circumstances and evidence indicate that it was not reliable or trustworthy. Bass’s statement

to law enforcement was unsworn, and, in relevant part, it was directly contradicted by Bass’s

sworn testimony at his trial. In general, Bass’s statement to law enforcement was riddled

with inconsistencies. Bass claimed that the gun was his, but he did not know what kind of

gun it was and could not identify the unknown man who sold it to him for $100. Later in

interview, when asked where he had gotten the gun, Bass simply stated, “I ain’t no snitch.”

Two eyewitnesses testified at Small’s trial that Small handed Bass the gun just before shots

were fired. In addition, at Bass’s trial, Anderson and Kendrick testified that Small handed

Bass the gun just before the shooting.4 The two other eyewitnesses at Small’s trial testified

that they did not see Small hand Bass the gun, but neither could say that they saw Bass pull

the gun. Under these circumstances, Bass’s prior statement was not sufficiently corroborated

to be admitted under Rule 804(b)(3). Therefore, even if it could be considered a statement

against Bass’s penal interest, it was properly excluded as inadmissible hearsay.

                                       CONCLUSION

¶20.   The trial judge did not abuse his discretion by excluding Bass’s post-arrest statements

that Small did not hand him a gun. Bass’s statement was neither clearly against his penal



       4
           Anderson and Kendrick did not testify at Small’s trial.

                                               9
interest nor clearly corroborated by attendant circumstances. Therefore, it was inadmissible

hearsay and properly excluded. We therefore affirm Small’s conviction and sentence.

¶21.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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