EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, April 12, 2021

Supreme Court of Mississippi Applies Pinkerton Conspiracy Theory to Forfeiture by Wrongdoing Exception

Similar to its federal counterpart, Mississippi Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay

A statement offered against a party that wrongfully caused – or acquiesced in wrongfully causing – the declarant’s unavailability as a witness, and did so intending that result.

Meanwhile, in Pinkerton v. United States, 328 U.S. 640 (1946), held that co-conspirators are responsible for the substantive offenses that were committed in furtherance of the conspiracy. So, if a co-conspirator of an incarcerated defendant kills a witness for the purpose of rendering him unavailable to testify, does that trigger this "forfeiture by wrongdoing" exception? That was the question addressed by the Supreme Court of Mississippi in its recent opinion in Buchanan v. State, 2021 WL 1310276 (Miss. 2021).

In Buchanan

On August 15, 2015, at approximately 11:00 p.m., D'Alandis Love, Perez Love, Kelsey Jennings, and Ken-Norris Stigler were traveling west on Highway 82 in a red Pontiac headed to the Moroccan Lounge, a club in Itta Bena. As they were driving, a gold Tahoe approached and opened fire on their vehicle. D'Alandis Love was killed. Perez Love, Jennings, and Stigler were seriously injured....
[Armand] Jones, [Sedrick] Buchanan, Michael Holland, Jacarius Keys, and James Earl McClung, Jr., were developed as suspects in the shooting. On September 3, 2015, Keys, accompanied by his attorney, went to the Leflore County Sheriff's Department and gave a statement to Investigator Staten. Keys's statement, which was videotaped, implicated Jones, Holland, Buchanan, and McClung in the shooting.


Keys, Jones, Holland, Buchanan, and McClung were later indicted and charged with one count of first-degree murder and three counts of attempted first-degree murder. Approximately five months after the men were indicted, Keys was shot and killed. Holland and Buchanan were considered suspects in Keys's death. It is undisputed that at the time of Keys's death, Jones was incarcerated.

Thereafter, at trial, the prosecution introduced Keys's statement through Mississippi Rule of Evidence 804(b)(6), and Buchanan was acquitted of the first-degree murder of D'Alandis Love but found "guilty of the lesser-included offenses of aggravated assault with respect to Perez Love, Jennings, and Stigler." He then appealed, claiming that Rule 804(b)(6) couldn't apply because he was incarcerated at when Keys was killed.

The fact that Jones was in jail at the time of Keys's murder is of no consequence. Pinkerton, 328 U.S. 640, 647-48, 66 S.Ct. 1180; see also United States v. Dinkins, 691 F.3d 358, 384 (4th Cir. 2012) (rejecting the argument that the forfeiture-by-wrongdoing exception should not apply to a defendant who was in jail at the time the witness was murdered). The record reflects that after Keys's murder, Holland received a text message from Buchanan on Jones's cell phone. This communication indicates that the men remained in contact even though Jones was incarcerated. Moreover, Keys himself went to Jones's attorney in an attempt to explain why he had given a statement to law enforcement. It is certainly probable and more likely than not that Jones's attorney advised Jones of Keys's statement. Keys's statement implicates Jones in the murder and attempted murders. After Jones learned that Keys had provided the statement, Keys was killed, and two of Jones's codefendants, Holland and Buchanan, were involved in Keys's death....

We find sufficient evidence was presented to show that Jones was part of an original conspiracy to “get” the Loves. We further find sufficient evidence was presented to show that Keys was killed to prevent his testimony. Indeed, Jones “ha[d] in mind the particular purpose of making the witness unavailable.” Giles, 554 U.S. at 367, 128 S.Ct. 2678 (the forfeiture-bywrongdoing exception applies if “the defendant has in mind the particular purpose of making the witness unavailable” (quoting Mueller & Kirkpatrick, supra, at § 8.134)). Even one of the individuals on the surveillance video stated that Keys “got what he deserved because he turned State's evidence.” Keys's murder was an act in furtherance and within the scope of the original conspiracy.



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Just to clarify one aspect of the case, while Buchanan and Jones both appealed and both raised the 804(b)(6) issue, the issue was only critical for Jones. Buchanan's conviction was ultimately reversed on a different ground.

I also note that three Justices dissented to some extent on the 804(b)(6) issue. They perhaps do have a point with respect to Pinkerton, which obviously didn't have to do with evidentiary questions. But it does seem like Dinkins is adequate persuasive authority for the evidentiary issue. Caveat that I haven't read either the majority or partial dissent in depth.

Finally, no surprise, but the Moroccan Lounge appears to be permanently shut down.

Posted by: hardreaders | Apr 13, 2021 8:25:29 AM

The Dissent is also cogent in its discussion of forfeiture by wrongdoing.

Posted by: Donald G Rehkopf, Jr. | Apr 13, 2021 8:42:09 AM

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