                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2006-CT-01065-SCT

DESMOND D. WALTON

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         08/04/2005
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   M ISSISSIPPI O FFIC E O F IN D IG EN T
                                          APPEALS
                                          BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JOHN R. HENRY
DISTRICT ATTORNEY:                        JON MARK WEATHERS
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 11/13/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    After a jury trial in the Circuit Court of Forrest County, Judge Robert B. Helfrich

presiding, Desmond D. Walton was convicted of murder and sentenced to a term of life

imprisonment in the state penitentiary. Walton appealed his conviction and sentence, and

the Court of Appeals unanimously affirmed. Walton v. State, 2007 Miss. App. LEXIS 757

(Miss. Ct. App. Nov. 13, 2007), rehearing denied, Walton v. State, 2008 Miss. App. LEXIS

162 (Miss. Ct. App. March 18, 2008). Walton petitioned this Court for a writ of certiorari,
and we granted certiorari to address the issue of whether the Court of Appeals erred in

holding that the admission of his statement given without a proper Miranda warning was

harmless error. Finding that the error was harmless, we affirm.

              FACTS AND PROCEEDINGS IN THE TRIAL COURT 1

¶2.    On June 1, 2004, Patrick Anderson a/k/a “PoBill” was found dead from a gunshot

wound, lying face down in his driveway. Anderson was a reputed drug dealer and member

of the Black Gangster Disciples. He lived in the Rawls Springs community just outside

Hattiesburg in a house surrounded by a six-foot fence, guard dogs, and closed-circuit

television cameras. No footage of the murder was captured by these cameras. No weapon

was recovered from the scene. Anderson was found with six hundred dollars in cash on his

person. No eyewitnesses came forward; however, observers of the police investigation of

the murder scene indicated that a dark-colored Lincoln automobile might have been involved.

¶3.    After hearing that law enforcement personnel were looking for his car, Jonah Pinkney

turned himself into the George County Sheriff’s Department in Lucedale. Pinkney gave

investigators the names of Jerry Street, Eric Love, and Michael Love. Street and Michael

Love eventually would surrender to law enforcement as well. Each gave statements and

testified at trial. Both Pinkney and Street implicated Walton as the shooter, and Michael

Love stated that Walton admitted to him, “ Man I did him [Anderson]. I had to do him.”



       1
       The facts of this opinion are for the most part gleaned from the facts in the Court of
Appeals opinion, Walton v. State, 2007 Miss. App. LEXIS 757 (Miss. Ct. App. Nov. 13,
2007).

                                             2
¶4.    Pinkney testified that he owned a 2002 Lincoln LS. He testified that his cousin, Jerry

Street, called him on the day of the murder and asked him for a ride to Hattiesburg for the

purpose of visiting “some girls.” Pinkney then met Street, Michael Love, Eric Love, and a

person whom he did not know, but later learned was Desmond Walton. Pinkney, Street, and

Walton rode to Hattiesburg in Pinkney’s car. Michael and Eric Love followed in a pick-up

truck. Pinkney recalled that, upon arriving in Hattiesburg, they made an initial stop at “some

apartments,”where Eric Love got into his car along with Street and Walton. They left the

apartments in Pinkney’s car. Michael Love remained in his truck.

¶5.    They continued driving around in the two vehicles until Michael Love flashed his

lights at Pinkney’s car to alert them that Patrick Anderson, the soon-to-be victim, had passed

by Pinkney’s car in his truck. Pinkney was instructed to turn around and follow Anderson’s

vehicle. Upon arriving at Anderson’s home, Walton instructed Pinkney to pull in behind

Anderson’s truck. Walton got out of the car wearing a Halloween mask that resembled a

skull. As Anderson approached Pinkney’s car, Walton met him; and the pair began talking.

Pinkney saw Walton grab Anderson by the shirt and shoot him. Pinkney then drove Street

and Walton back to Lucedale. En route, Walton discarded the Halloween mask alongside

Highway 98. The mask was recovered by a Mississippi Department of Transportation

employee. At trial, Pinkney identified this mask as the one worn by Walton on the day of

the killing.

¶6.    Michael Love testified at trial that Anderson was his drug supplier who “fronted him”

drugs that he would, in turn, sell on behalf of Anderson. He testified that the purpose of the

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trip to Hattiesburg was to buy drugs. Michael also testified that he was at the apartments at

the time of the shooting and therefore did not actually witness the shooting. He further stated

that he later met Eric Love, and the two drove back to Lucedale, where they rejoined Walton,

Street, and Pinkney. He recalled that Walton, in discussing the murder, stated to him: “Man

I did him [Anderson]; I had to do him.”

¶7.    Street testified that Pinkney, Eric Love, and Michael Love were his cousins. He

testified that the purpose of the trip to Hattiesburg was to rob someone. After driving around

and spotting Anderson in his vehicle, they followed Anderson to his house, where Walton

got out of the car wearing a Halloween mask and shot Anderson.

¶8.    Walton was taken into custody on June 11, 2004, in Mobile, Alabama. While in

custody, he was interviewed on two occasions. The interviews were videotaped but not

transcribed. An agent with the Drug Enforcement Agency conducted the first interview

concerning incidents unrelated to the murder of Anderson. This interview was terminated

when Walton stated he did not want to continue to answer questions. This videotape was

suppressed by the trial judge after the agent’s refusal to appear in Mississippi to testify.

After this interview, as Walton was being escorted back to his cell, a Mobile police officer

told him that if he were going to make a statement to help himself “now was the time.” The

second interview was conducted by Detective Don Gomien with the Mobile Police

Department. For most of the forty-minute interview, Walton maintained his innocence.

Walton then claimed that he had gone to Anderson’s house to buy drugs and that, during the




                                              4
drug exchange, Anderson had pulled out a gun and Walton had shot him in self-defense.

Walton was not given his Miranda warnings prior to this second interview.2

¶9.    Eric Love was awaiting his own trial at the time of Walton’s trial, and Eric did not

testify. Walton did not testify on his own behalf or offer any other evidence. The jury found

Walton guilty of the murder of Anderson, and the judge sentenced Walton to a term of life

imprisonment in the custody of the Mississippi Department of Corrections.

                     PROCEEDINGS IN THE COURT OF APPEALS

¶10.   The Court of Appeals did not characterize the statements in the second interview as

a confession, but as an assertion by Walton that he acted in self-defense in shooting

Anderson. The Court of Appeals, however, did find that the admission of this videotape was

prejudicial to Walton’s defense. Walton v. State, 2007 Miss. App. LEXIS 757, *10-11

(Miss. Ct. App. Nov. 13, 2007). As noted by the Court of Appeals: “However, the issue is

not simply prejudice. It is, whether in light of the record as a whole, Walton would have

been convicted beyond a reasonable doubt even without the tainted statement.” Id. The

appellate court found beyond a reasonable doubt that even without the tainted confession,

Walton would have been found guilty based on the overwhelming weight of the evidence,

which included the testimony of his three co-defendants. Id. As a result, the Court of

Appeals found Walton’s first assignment of error to be without merit.




       2
           Miranda v. Arizona, 384 U.S. 436, 472-75, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                               5
¶11.   As to Walton’s ineffective assistance of counsel claim, the Court of Appeals found

the record “insufficient” for such a determination. Id. at *12. Moreover, the Court of

Appeals relied on the holding in Ramsey v. State, 959 So. 2d 15 (Miss. Ct. App. 2006)

(citing Read v. State, 430 So. 2d 832, 841 (Miss. 1983)) in stating: “An appellate court will

only address an issue of ineffective assistance of counsel on direct appeal if the parties

stipulate counsel was ineffective, or the record is clear that counsel’s performance was so

deficient as to raise constitutional issues.”       The Court of Appeals found at least one

legitimate reason that Walton’s counsel declined to request the manslaughter instruction

insomuch as “a charge carrying a twenty-year maximum sentence would not have been

sufficiently less onerous than a life sentence, to risk allowing the jury to consider a charge

carrying lightened elements of a crime.” Id. at *12-13. The Court of Appeals dismissed this

claim without prejudice so as to allow Walton to raise it more properly in a petition for post-

conviction relief. Id. at *13. The Court of Appeals unanimously affirmed the conviction and

sentence of the trial court. After his motion for rehearing was denied by the Court of

Appeals, Walton filed his petition for writ of certiorari seeking this Court’s review of the

Court of Appeals’ judgment.

                                        DISCUSSION

¶12.   Walton espouses two assignments of error by the trial court and the Court of Appeals

for this Court’s review: (1) whether the Court of Appeals erred in finding that the trial court’s




                                                6
admission of his statement (or, as phrased by Walton, his “coerced confession”)3 given

without a proper Miranda warning was harmless error, and (2) whether the Court of Appeals

erred in dismissing Walton’s ineffective-assistance-of-counsel claim for failing to request a

manslaughter instruction as a lesser-offense instruction. Notwithstanding the assignments

of error which Walton presents to us for review, this Court unquestionably has authority to

limit the question for review upon a grant of certiorari. See Miss. R. App. P. 17(h).

¶13.   As to the second issue raised by Walton we adopt the Court of Appeals’ reasoning in

toto insomuch as the issue was properly dismissed without prejudice due to an insufficient

record. The Court of Appeals quite appropriately found that this issue should be dismissed

without prejudice so that it could be more properly raised in post-conviction-relief

proceedings. We thus address the one issue we have chosen to discuss upon our grant of

certiorari.

       WHETHER THE COURT OF APPEALS ERRED IN FINDING THAT
       THE ADMISSION OF WALTON’S SECOND STATEMENT WAS
       HARMLESS ERROR.

¶14.   Constitutional error does not automatically require reversal of a conviction. Chapman

v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L. Ed. 2d 705 (1967). However, before a

constitutional error is determined to be harmless, “the court must be able to declare a belief

that it was harmless beyond a reasonable doubt." Arizona v. Fulminante, 499 U.S. 279, 295,



       3
       Nothing in this opinion should be construed as our stating, or even implying, that we
are addressing the issue as to whether Walton’s second statement to law enforcement was
“a coerced confession.”

                                              7
111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). An error may be found by this Court to be

harmless beyond a reasonable doubt only “where the weight of the evidence against the

accused is overwhelming.” Clark v. State, 891 So. 2d 136, 142 (Miss. 2004) (citing Riddley

v. State, 777 So. 2d 31, 35 (Miss. 2000)). A harmless-error determination “requires an

examination of the facts, the trial context of the error, and the prejudice created thereby as

juxtaposed against the strength of the evidence of defendant's guilt.” Hopkins v. State, 799

So. 2d 874, 879 (Miss. 2001) (citing United States v. Dixon, 593 F.2d 626, 629 (5th Cir.

1979). A harmless-error determination is made based on a de novo review of the record.

Fulminante, 499 U.S. at 295.

¶15.   Based on the record, it is clear that Walton was not properly advised of his rights

under Miranda in the second police interrogation and that the admission of the statements

during this interview reached the level of constitutional error. As such, the trial court’s error

must be subjected to a harmless error analysis–whether the error was harmless beyond a

reasonable doubt upon review of the weight of the evidence.                 This Court agrees

wholeheartedly with the Court of Appeals’ finding that, even without the videotaped

statement, based on the overwhelming weight of the evidence of Walton’s guilt as revealed

in the record before us, a jury would have found beyond a reasonable doubt that Walton was

guilty of the murder of Anderson.

¶16.   Three of the four co-defendants present on the day of the murder testified that Walton

was the shooter. Two of these co-defendants were eyewitnesses to the murder. Another co-

defendant, Michael Love, testified that Walton admitted to being the shooter. Michael Love

                                               8
recalled Walton saying, “Man I did him [Anderson]; I had to do him.” Had the videotape

been properly excluded, the jurors still would have had the opportunity to assign the same

amount of weight and credibility to the witnesses; therefore, the overwhelming weight of

the evidence points to the guilt of the accused. It is not the role of this Court to usurp the jury

as final arbiter of the weight and credibility assigned to the testimony of witnesses. This

Court repeatedly has held that the proper role of jurors is to resolve factual disputes by

assigning the proper credibility to witnesses:

       In Benson v. State, 551 So. 2d 188, 193 (Miss. 1989), this Court held that
       factual disputes are properly resolved by the jury in a criminal prosecution and
       do not mandate a new trial. The jury is the trier of witness credibility. Collier
       v. State, 711 So. 2d 458, 462 (Miss. 1998). Jurors are permitted to, and have
       a duty to, resolve conflicts in testimony they hear. Groseclose v. State, 440 So.
       2d 297, 300 (Miss. 1983); Gandy v. State, 373 So. 2d 1042, 1045 (Miss.
       1979). "[Jurors] may believe or disbelieve, accept or reject, the utterances of
       a witness." Gandy, 373 So. 2d at 1045. There is no formula that dictates the
       juror's decision in resolving conflicts in testimony of the witness. Id. The jury
       is the final arbiter of a witness's credibility. Morgan v. State, 681 So. 2d 82,
       93 (Miss. 1996). The jury weighs the weight and worth of any conflicting
       testimony. Williams v. State, 757 So. 2d 953, 957 (Miss. 1999).

Hicks v. State, 812 So. 2d 179, 194 (Miss. 2002).

¶17.   Walton dismisses the incriminating testimony of these witnesses by virtue of the fact

that, as co-defendants, their statements were not credible. This Court has long held that “the

testimony of an accomplice must be viewed with ‘great caution and suspicion.’” Strahan

v. State, 729 So. 2d 800, 805 (Miss. 1998) (quoting Jones v. State, 368 So. 2d 1265, 1267

(Miss. 1979)). As to whether an accomplice jury instruction should be granted by the trial

court, this Court has said:


                                                9
       It is within the discretion of the trial court to grant a cautionary instruction
       pertaining to the testimony of an accomplice witness. Burke v. State, 576 So.
       2d 1239, 1242 (Miss. 1991). The discretion is not absolute and may be abused.
       Id. This Court, in Wheeler v. State, 560 So. 2d 171 (Miss. 1990), held the
       following: In Van Buren v. State, 498 So. 2d 1224, 1229 (Miss.1986), this
       Court said, "the granting of a cautionary instruction regarding the testimony
       of an accomplice is discretionary with the trial judge." (Citations omitted).
       However, that discretion is not absolute; it may be abused. [Derden], 522 So.
       2d 752, 754.The Derden case stated that two of the aspects in determining
       whether a trial judge has abused his discretion concerning a "caution and
       suspicion" instruction are: (1) was the witness an accomplice; and, (2) was his
       testimony without corroboration.

Slaughter v. State, 815 So. 2d 1122, 1134 (Miss. 2002). In this case, the trial judge did, in

fact, grant an accomplice jury instruction. The following jury instruction, marked “Amended

D-3,” was given by the trial judge:

       The court instructs the jury that the law looks with suspicion and distrust on
       testimony of an accessory to a crime and requires the jury to weigh the
       testimony from an accessory and in passing on what weight, if any, you should
       give this testimony, you should weigh it with great care and caution, and look
       upon it with distrust and suspicion.

Juries are presumed to follow the instructions given to them by the court. Wheeler v. State,

826 So. 2d 731, 740 (Miss. 2002) (citing Weaver v. State, 497 So. 2d 1089, 1094 (Miss.

1986)). Therefore, the jury is presumed to have properly weighed the witnesses’ testimony

with great care and caution and to have looked upon it with distrust and suspicion.

¶18.   Walton cites inconsistencies among the witnesses’ testimony in an attempt to discredit

them. As to the variance in witnesses’ perceptions of a common nucleus of events this Court

has remarked, “Seldom do witnesses agree on every detail. Indeed, their failure to do so is

often strong evidence each is trying to portray the situation as he saw it, and that is to the


                                             10
credit, rather than the discredit of the witnesses.” Noe v. State, 616 So. 2d 298, 302 (Miss.

1993). Moreover, Walton points to defense exhibits that suggest the co-defendants–with the

exception of Walton–shared cells while in custody at the local jail. Walton asserts that Jerry

Street’s statements to law enforcement were influenced by his having shared a jail cell with

Jonah Pinkney prior to giving the statements. However, Jerry Street’s cross-examination

testimony makes it clear that he gave his statement to law enforcement prior to being housed

in a cell with Jonah Pinkney:

       Q.     Before you gave these statements though, you were in that cell; weren’t
              you?
       A.     Before? Before?
       Q.     Uh-huh. You were in the cell with Jonah for a few days?
       A.     Nuh-uh, I gave it before I got in the cell with Jonah.
       Q.     Are you positive about that?
       A.     Yes, sir. I got in the cell–before I got in the cell with Jonah, I gave that
              statement.

Street’s version of these events was confirmed by the testimony of Forrest County

Investigator David Jarrell on cross examination, i.e. that the two were in separate cells three

to four days prior to their having given statements.         Jarrell further testified that any

documentation to the contrary was a mistake. The facts, as presented to the jury, simply do

not support Walton’s theory that his conviction was the result of a conspiracy on the part of

his accomplices to frame him for Anderson’s murder.




                                              11
¶19.   For the reasons discussed, we find this issue to be without merit.

                                       CONCLUSION

¶20.   Having fully discussed the sole issue we have chosen to address upon our grant of

certiorari, and for the reasons stated, we affirm the judgment of the Court of Appeals and

the Forrest County Circuit Court’s judgment of conviction and life sentence imposed upon

Desmond D. Walton for the murder of Patrick Anderson.

¶21. THE JUDGMENTS OF THE COURT OF APPEALS AND THE FORREST
COUNTY CIRCUIT COURT ARE AFFIRMED. CONVICTION OF MURDER AND
SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED.

    SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY GRAVES, J. LAMAR, J., NOT PARTICIPATING.


       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶22.   I must respectfully dissent from today’s opinion as the contradictory testimony of the

three co-defendants in this case can hardly constitute “overwhelming” evidence of murder.

¶23.   As the majority admits, the only evidence the State had against Walton was the

testimony of three of his co-defendants, all of whom were related to one another. Initially,

all of the co-defendants were indicted for Anderson’s murder, but prior to Walton’s trial, the

testifying co-defendants each pleaded guilty as accessories after the fact and were given light

sentences. In addition, each of these witnesses gave conflicting statements to police, as well

as conflicting testimony at trial. Other than the admitted participants to the crime, there were

no witnesses, and there was no physical evidence pointing to Walton.

                                              12
¶24.   The majority correctly recites the long-standing rule that “the testimony of an

accomplice must be viewed with ‘great caution and suspicion.’” Maj. Op. at 9 (quoting

Strahan v. State, 729 So. 2d 800, 805 (Miss. 1998)). Yet, even though our law is clear that

such testimony is highly questionable, the majority somehow finds that these statements

constitute “overwhelming” evidence of Walton’s guilt. I fail to see how suspicious testimony

can rise to the level of “overwhelming.”

¶25.   The Court further erodes our case law by holding that, in this case, the rule does not

apply because the jury was properly instructed on accomplice testimony. However, this

completely ignores the prejudicial effect of the videotaped statement. The Court of Appeals

clearly, and correctly, found that the confession “had to have been prejudicial.” Walton v.

State, 2007 Miss. App. LEXIS 757, ¶ 13 (Nov. 13, 2007). The jury could have easily found

the witnesses’ testimony suspicious – as does, on normal occasions, this Court – and rested

its verdict on the improperly admitted statement.

¶26.   Accomplice testimony, by its very nature, cannot form the basis of “overwhelming

evidence.” Therefore, the majority implicitly acknowledges that the videotaped statement

is what raised the weight of the evidence to an “overwhelming” level. Given this, one can

hardly contend that the admission of the videotaped statement had no effect on the jury and

was harmless. Indeed, given that it may have led to a conviction for the most serious crime

recognized in our state, the error is the most harmful imaginable.

¶27.   In light of the highly questionable testimony of his co-defendants, Walton’s statement

must have had a significant impact upon the jury, and such testimony cannot form the basis

                                             13
of “overwhelming” evidence of his guilt. This Court cannot conclude that this evidence

could have established guilt of murder “beyond a reasonable doubt.” Thomas v. State, 711

So. 2d 867, 872 (Miss. 1998) (internal citations and quotations omitted). The improperly

admitted statement was certainly of great significance “in relation to everything else the jury

considered on the issue,” Id. at 873, and there can be no other conclusion that the admission

of the statement was reversible error. The judgments of the Court of Appeals and the trial

court should be reversed, and this case should be remanded for a new trial.

       GRAVES, J., JOINS THIS OPINION.




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