Little v. State

Decision Date12 October 2017
Docket NumberNO. 2014–CT–01505–SCT,2014–CT–01505–SCT
Citation233 So.3d 288
Parties Marlon LITTLE v. STATE of Mississippi
CourtMississippi Supreme 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."

¶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 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 opinion, the Court of Appeals reversed Little's convictions and remanded for a new trial. Little v. State , No. 2014-KA-1505-COA, ––– So.3d ––––, 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 , ––– So.3d at ––––, 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 , 233 So.3d at 314–17, 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 , 233 So.3d at 318, 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.


¶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 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...

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