                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2019-KA-00511-SCT

GREGORY WALKER a/k/a PEANUT

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         02/13/2019
TRIAL JUDGE:                              HON. ALBERT B. SMITH, III
TRIAL COURT ATTORNEYS:                    DAVID LYDELL TISDELL
                                          HELEN BAGWELL KELLY
                                          KIMBERLY DENICE McCRAY
                                          ROSHARWIN LEMOYNE WILLIAMS
                                          STEPHANIE ALEXIS BROWN
COURT FROM WHICH APPEALED:                COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: HUNTER N. AIKENS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
DISTRICT ATTORNEY:                        BRENDA FAY MITCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 08/06/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.

       KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.    In February of 2019, Gregory “Peanut” Walker was convicted of one count of

fondling and two counts of sexual battery. Walker was sentenced to serve fifteen years on

Count I, twenty-five years on Count II, and twenty-five years on Count III. These three

sentences were made to run concurrently. Walker now appeals his conviction. He asserts that

the evidence was insufficient to support the verdict only on Count II, digital sexual
penetration. Walker contends also that his due process rights and his right to a fair trial were

violated because the State adduced testimony regarding Walker’s post-Miranda silence. See

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

responds that the evidence is sufficient to support the verdict on Count II and that Walker

opened the door for the State when he testified that he had refused to give a statement to the

police. We agree with the State and affirm Walker’s conviction.

                             STATEMENT OF THE FACTS

¶2.    On a night in 2014, Sarah1 told her maternal grandmother that when Sarah was eleven

years old, Peanut assaulted her sexually on several occasions between May 1, 2013, and June

30, 2014. At the time the alleged sexual assaults occurred, Sarah lived with her two siblings

and their grandmother on Eight Street in Clarksdale, Mississippi, where Sarah said the crimes

had occurred.2 After Sarah told her grandmother about Peanut, the grandmother telephoned

her niece in Chicago, Illinois, to inform her. Some time after she had spoken with her niece,

the grandmother called the police.

¶3.    On July 24, 2014, Officer Jacob Braxton of the Clarksdale Police Department was

dispatched to the residence on Spruce Street in response to a report that a child had been

touched inappropriately. Once on the scene, Officer Braxton spoke with the child’s mother,


       1
       To protect the child victim’s identity, we have used a fictitious name. Sarah was born
January 22, 2002. She was eleven years old in 2013, the year of the alleged assaults. She was
seventeen when she testified at trial.
       2
       At some point after the alleged assaults occurred, the residence on Eight Street
burned down. The grandmother eventually moved to a house on Spruce Street. It was while
Sarah was living on Spruce Street that she told the grandmother she had been touched
inappropriately by Peanut.

                                               2
Ruby Smith,3 and the child’s grandmother. Both told Officer Braxton that the man who had

sexually assaulted Sarah went by the name Peanut. The case was turned over to Investigator

Charles Sledge.

¶4.    Investigator Sledge testified that he became aware of this case in September of 2015.4

Around that time, Sledge went to the residence on Spruce Street and spoke with the

grandmother, who gave Walker’s name as a potential suspect.

¶5.    On October 21, 2015, Sledge drove Sarah and her mother to Oxford, Mississippi,

where an interview of the child was conducted by the Family Crisis Services of Northwest

Mississippi. The interview was conducted by Tomiko Mackey, who testified that during the

course of the interview, Sarah told Mackey that Peanut had sexually assaulted her. Through

a two-way mirror, Investigator Sledge witnessed the interview and subsequently caused the

issuance of an arrest warrant for Walker. Walker was arrested on September 22, 2016.

¶6.    On December 7, 2016, Walker was indicted and charged with one count of fondling

(Count I), two counts of sexual battery (Count II and III), and one count of attempted

fondling (Count IV)5. Count II of the indictment, which is at issue on appeal, alleged

       That Gregory Walker A/K/A “Peanut,” . . . did unlawfully, willfully, and
       feloniously, engage in sexual penetration with [Sarah], a female child under
       the age of fourteen (14) years and Gregory Walker was twenty four (24) or
       more months older than the child, by inserting his finger into the vaginal
       opening of [Sarah].



       3
       A fictitious name is given the mother to protect the child’s identity.
       4
       It is unclear from the record why this apparent delay in the investigation occurred.
       5
       Count IV later was nolle prossed by the State.

                                             3
¶7.    At trial, the grandmother testified that Walker would visit her house on Eight Street.

Sarah’s mother and grandmother identified Walker in court as being the person whom Sarah

was calling Peanut.

¶8.    Sarah testified at trial that when she was eleven years old and living with her

grandmother on Eight Street, she was sexually assaulted by Peanut on at least three different

occasions during the summer of 2013.

¶9.    According to Sarah’s testimony, the first time Peanut touched her was when she was

sitting on a couch watching television. Sarah said that Walker sat on the couch, looked at her,

then “put his hand behind a pillow and he put—touch me in my skirt, like, in the inside.”

Sarah clarified that Walker had specifically touched her butt, her chest, and her private area.

The prosecutor asked Sarah whether there had been another incident between Walker and

her, to which she responded that “[h]e try to put his stuff in my butt and in my private area.”

Sarah testified also that on one occasion Walker pulled down her pants and assaulted her

with his tongue. Sarah identified Walker as being the individual nicknamed Peanut who

sexually assaulted her.

¶10.   Early in the child’s testimony, the prosecutor asked a question to which Walker’s

attorney objected on the ground that the prosecutor was leading the witness. The prosecutor

argued that Sarah was a child witness, and the State would have to lead her to some degree.

The judge responded, “I’ll allow it for now.”

¶11.   Further on in the State’s case, the prosecutor asked Sarah, “Did he ever take his finger

and place it anywhere?” Again, Walker’s attorney objected to the State’s question on the



                                              4
basis that the State was leading Sarah, “specifically about the elements of the crime.” Before

Walker’s objection, however, Sarah answered the prosecutor’s question, stating “[i]n the

inside of my private area.” The following then transpired:

       The Court: Do try to give a what happened type of open-ended question.

       State: Yes, sir.

       The Court: And if you—Let’s try that first.

       State: Yes, sir.

The State then asked Sarah another series of leading questions:

       State: So you told us about the touching part, right?

       Sarah: Yes, sir.

       State: And you told us about the other part, right?

       Sarah: Yes, sir.

¶12.   Walker testified in his own defense. He admitted to being at the grandmother’s house

on several different occasions. Walker testified that he never was alone with Sarah and

claimed repeatedly that he did not commit the alleged acts.

¶13.   The following exchange occurred between the prosecution and Walker on cross-

examination:

       State: But you heard this child come in and emotionally testify exactly what
              happened, right?

       A:      Yes

       State: And there is no reason that you can come up with as to why she would
              make that up; do you, ’cause she had nothing against you, right?



                                              5
A:     I don’t – No. I told you from the kiddy stuff. And then [Sarah’s
       grandmother] – I don’t know ’cause it’s all about [the grandmother]
       ’cause it’s not about me, sir. I mean, it – all this about [the
       grandmother]. She the one who got the attitude against me, the grudge
       against me. I mean, she the one who said she saw me all this – ain’t
       none of this just – this stuff be – people be saying took place, sir. I
       mean, I was seeing [Ruby Smith] all – all along, like, all this stuff even
       took place and she never approach me about anything. I mean –
       And then when the police came to me, he tried to make me testify and
       give him what he want; if not, he would give me $100,000 bond.

State: Well, Mr. Walker, you’re being a little untruthful because the officer
       never told you to testify against yourself.

A:     He try and get me to give a open statement. And so he told me – his
       exact words, since he wasn’t gonna – I wasn’t gonna tell him anything,
       he will give me $100,000 bond.

State: Who was that officer?

A:     Officer – we call him “Evay.”

State: Okay.

A:     And so when it end, we wanted to talk, and he told us, don’t worry
       about it, and just went to question me. And so he say he ain’t wanna
       hear the shit and end that. And they gave me a bond.
....

State: Let me just make sure I’m clear. You heard about these allegations in
       2015; you did nothing, right?

A:     Did nothing.

State: Serious allegations, right? Then you said that when you went to speak
       with this officer, that he promise you $100,000 bond to say he –

A:     Uh, uh, uh, no, no, no, no. He – When they got me, interrogated me,
       they pick me up on my traffic violation and they had took me over
       there, they said they had a hold, a felony hold to talk to an investigator.
       Now, this when I had approached Officer Sledge, “Evay.” This when
       I walked in. He was asking me some questions and told me that he

                                        6
              needed to know something and I wouldn’t give him a statement; that’s
              what I’m talking about. Not no other time, sir. This was
              interrogation–during interrogation time.

¶14.   After the defense rested, the State called Investigator Sledge as a rebuttal witness. The

prosecutor asked Sledge whether he had threatened to give Walker a $100,000 bond. In

response, Sledge testified that he had attempted to question Walker after he was arrested but

that Walker refused to give a statement. Sledge also denied that he had tried to force Walker

to give a statement.

¶15.   On February 12, 2019, the jury found Walker guilty on all three counts. Walker was

sentenced to serve concurrent sentences of fifteen years for Count I, twenty-five years for

Count II, and twenty-five years for Count III. Walker filed a motion for judgment

notwithstanding the verdict or for a new trial, which was denied on February 27, 2019.

Walker now appeals, asking this Court to reverse and render his conviction for Count II and

to reverse and remand the remaining counts for a new trial. First, Walker challenges the

sufficiency of the evidence for Count II only. Second, he alleges that his right to due process

and a fair trail were violated by the State’s improper comment on his post-Miranda silence.

                                STANDARD OF REVIEW

¶16.   “When reviewing a challenge to the sufficiency of the evidence, this Court will

reverse and render only if the facts and inferences ‘point in favor of the defendant on any

element of the offense with sufficient force that reasonable men could not have found beyond

a reasonable doubt that the defendant was guilty,’ . . . .” Hughes v. State, 983 So. 2d 270,

275-76 (Miss. 2008) (internal quotation marks omitted) (quoting Brown v. State, 965 So. 2d



                                              7
1023, 1030 (Miss. 2007)). This Court has held that “[w]hen reviewing challenges to the

sufficiency of the evidence, we view all evidence in the light most favorable to the State.”

Thomas v. State, 277 So. 3d 532, 535 (Miss. 2019) (citing Cotton v. State, 144 So. 3d 137,

142 (Miss. 2014)).

¶17.   We have applied the plain error doctrine in cases concerning a prosecutor’s comments

on a defendant’s post-Miranda silence. Swinney v. State, 241 So. 3d 599, 605-06, 609 (Miss.

2018); Robinson v. State, 247 So. 3d 1212, 1226 (Miss. 2018). “The plain error doctrine is

employed only in situations when ‘a defendant’s substantive or fundamental rights are

affected.’” Green v. State, 183 So. 3d 28, 31 (Miss. 2016) (quoting Flora v. State, 925 So.

2d 797, 811 (Miss. 2006)). “To determine if plain error has occurred, this Court must

determine if the trial court has deviated from a legal rule, whether that error is plain, clear,

or obvious, and whether that error has prejudiced the outcome of the trial.” Swinney, 241 So.

3d at 606 (internal quotation marks omitted) (quoting Conner v. State, 138 So. 3d 143, 151

(Miss. 2014)).

¶18.   This Court has held also that “[i]t is improper and, ordinarily, reversible error to

comment on the accused’s post-Miranda silence.” Id. at 608 (internal quotation marks

omitted) (quoting Quick v. State, 569 So. 2d 1197, 1199 (Miss. 1990)). “However, this Court

has found that such improper comments may amount to harmless error where evidence of the

defendant’s guilt is overwhelming.” Robinson, 247 So. 3d at 1226 (citing Riddley v. State,

777 So. 2d 31, 35 (Miss. 2000)). “Evidence of post-arrest silence is improper, because it




                                               8
violates the accused’s right against self-incrimination.” Swinney, 241 So. 3d at 608 (internal

quotation marks omitted) (quoting Austin v. State, 384 So. 2d 600, 601 (Miss. 1980)).

                                       DISCUSSION

       I.     Walker’s sufficiency of the evidence argument is procedurally
              barred because Walker’s attorney failed to obtain a definitive
              ruling from the trial judge.

¶19.   Walker asserts that the evidence is insufficient to support a guilty verdict for Count

II because his trial attorney objected to the only testimony that proved Walker digitally

penetrated Sarah, that the trial judge sustained the objection, and that the State failed to

reintroduce Sarah’s testimony through the proper means. The State responds that the trial

court did not sustain Walker’s objection but merely advised the State to ask more open-ended

questions. Walker’s argument is dependent on whether the trial judge sustained or overruled

Walker’s objection regarding the State’s leading question that led to Sarah’s testifying that

Walker had assaulted her with his finger.

¶20.   Early in Sarah’s testimony, Walker’s attorney objected on the ground that the State

was leading the witness. The prosecutor argued that since the witness was a child, the State

would have to lead “to some degree[.]” See Eakes v. State, 665 So. 2d 852, 869 (Miss. 1995)

(“[T]he ‘classic example’ of a situation ripe for leading questions on direct is where the

witness is a child.” (citing Jones v. State, 606 So. 2d 1051, 1059 (Miss. 1992))). The trial

judge allowed the State to lead the witness “for now.” The State continued its direct

examination of Sarah, which included the following exchange:

       State: Okay. Did he ever take his take his finger and place it anywhere?



                                              9
       Sarah: In the inside of my private area.

       Defense Attorney: Your Honor, I’m going to object to the leading. I mean, he’s
       asking her specifically about the elements of the crime. If she wants to testify
       to it, that’s fine but she needs to do it without him asking leading questions.

       The Court: Do try to give a what happened type of open-ended question.

       State: Yes, sir.

       The Court: And if you — Let’s try that first.

       State: Yes, sir.

¶21.   Walker asserts that the trial judge’s response, “[a]nd if you —[l]et’s try that first[,]”

was the court’s way of sustaining Walker’s objection. This Court’s precedent establishes that

“[i]t is incumbent on the party asserting error to make a contemporaneous objection and

obtain a ruling in order to preserve the objection.” Ronk v. State, 172 So. 3d 1112, 1128

(Miss. 2015) (internal quotation marks omitted) (quoting Brown v. State, 965 So. 2d 1023,

1029 (Miss. 2007)). It is not clear whether the trial judge’s response sustained or overruled

Walker’s objection. We find that the trial judge did not make a definitive, on-the-record

ruling and that Walker’s attorney failed to ask for such a ruling. Because Walker’s attorney

did not insist that the trial judge make a definitive ruling, this issue has been waived. See

Rials v. Duckworth, 822 So. 2d 283, 288 (Miss. 2002) (“This Court has held that a defendant

waives his objection ‘where an objection [is] made and a definitive ruling [is] not obtained

nor any corrective action requested.’” (alterations in original) (quoting Walters v. State, 720

So. 2d 856, 864 (Miss. 1998))); see also Cox v. State, 183 So. 3d 36, 55 (Miss. 2015)

(“[T]his Court repeatedly has held that failure to object contemporaneously at trial waives



                                              10
any claim of error on appeal.” (internal quotation marks omitted) (quoting Gillett v. State,

56 So. 3d 469, 520 (Miss. 2010))). Therefore, we find that Walker’s claim is procedurally

barred and that Sarah’s testimony in response to the leading question stands.

       II.    Post-Miranda Silence

¶22.   Walker asserts that his right to due process and a fair trial were violated by the State

because a prosecution witness, Investigator Sledge, commented on Walker’s post-Miranda

silence. Walker admits that his trial attorney failed to make a timely objection to Investigator

Sledge’s testimony regarding Walker’s refusal to give a statement. Nevertheless, this Court

will address Walker’s due process argument because “even without a timely objection,

reversal may be required when the prosecuting attorney has commented upon the defendant’s

right not to testify.” Griffin v. State, 557 So. 2d 542, 552 (Miss. 1990) (citing Livingston v.

State, 525 So. 2d 1300, 1306-07 (Miss. 1988), overruled on other grounds by Wright v.

State, 958 So. 2d 158 (Miss. 2007)).

¶23.   Both the United States Constitution and the Mississippi Constitution recognize a

defendant’s right against self-incrimination. U.S. Const. amend. V; Miss. Const. art. 3, § 26.

The United States Supreme Court has held that “the use for impeachment purposes of

petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the

Due Process Clause of the Fourteenth Amendment.” Doyle v. Ohio, 426 U.S. 610, 619, 96

S. Ct. 2240, 49 L. Ed. 2d 91 (1976). This Court has held that “[i]t is improper and, ordinarily,

reversible error to comment on the accused’s post-Miranda silence. The accused’s right to




                                              11
be silent then is equally as strong as the right not to testify and it is error to comment on

either.” Quick, 569 So. 2d at 1199.

¶24.   Walker claims that Investigator Sledge’s rebuttal testimony was not limited to

rebutting Walker’s claim that Sledge had threatened him with a high bond ($100,000) as a

means of obtaining a confession from Walker. Specifically, Walker claims that Sledge

“exceed[ed] the extended invitation” because Sledge’s testimony was not limited to

discrediting Walker’s earlier testimony; his testimony addressed also Walker’s refusal to give

a statement. See Stewart v. State, 596 So. 2d 851, 853 (Miss. 1992) (“[T]he prosecution’s

impeachment privilege may not exceed the invitation extended.” (citing Blanks v. State, 547

So. 2d 29 (Miss. 1989))). Thus, Walker argues that it was plain error for Sledge to exceed

Walker’s “invitation” and to comment on his post-Miranda silence, which constitutes a

reversible error under Quick.

¶25.   The State asserts that even if Sledge’s testimony comments on Walker’s post-Miranda

silence, Walker opened the door for the State by testifying that he did not give a statement

to the police. See Martin v. State, 970 So. 2d 723, 725 (Miss. 2007) (“It is well-settled that

a defendant who ‘opens the door’ to a particular issue runs the risk that collateral, irrelevant,

or otherwise damaging evidence may come in on cross-examination.” (quoting Murphy v.

State, 453 So. 2d 1290, 1294 (Miss. 1984))). The State is correct.

¶26.   On cross-examination, the State asked Walker, “[a]nd there is no reason that you can

come up with as to why [Sarah] would make that up; do you, ’cause she had nothing against

you, right?” In response, Walker said that Sarah’s grandmother had a grudge against him.



                                               12
Then, at the end of Walker’s response, unsolicited by the prosecution, Walker launched

spontaneously into a rambling, unresponsive narrative, which included, “[a]nd then when the

police came to me, he tried to make me testify and give him what he want; if not, he would

give me $100,000 bond.” Following Walker’s lengthy commentary, the prosecutor said,

“Well, Mr. Walker, you’re being a little untruthful because the officer never told you to

testify against yourself.” Then Walker elaborated and said that Investigator Sledge had

threatened him with a $100,000 bond because Walker “wasn’t gonna tell him anything.”

¶27.   The State called Investigator Sledge as a rebuttal witness. Sledge’s rebuttal testimony

included the following:

       State:        Did you have [Walker] or did you question him regarding this
                     particular case?

       Sledge:       I attempted to question him when he was arrested but he refused
                     to give a statement.

       State:        Did you try to force him to give you a statement?

       Sledge:       No.

       State:        Do you ever force individuals to give you a statement?

       Sledge:       No. I read them their rights and that’s their option.

       State:        There has been raised a statement or words to the effect of, you
                     didn’t wanna hear that shit. Did you say that?

       Sledge:       I—No, I don’t recall saying nothing like that.

       State:        Also gonna advise you about bond settings on cases. Do you set
                     bonds on a case?

       Sledge:       I do not.



                                             13
       State:         Did you, in fact, move for a $100,000 bond on the Defendant in
                      this case?

       Sledge:        No.

¶28.   This Court finds that Investigator Sledge’s testimony was limited to rebutting

Walker’s testimony and was not an improper comment on Walker’s silence.6 It is clear from

the transcript that Walker’s comments regarding his refusal to give the police a statement

were generated by Walker, not by the State. See Johnson v. State, 666 So. 2d 499, 503 (Miss.

1995) (“[W]here the State ‘initiate[s] the matter by eliciting from the defendant the response

it later [seeks] to impeach by showing the defendant’s prior criminal . . . activities,’ the

impeachment is impermissible and cause for reversal and remand.” (alterations in original)

(quoting Quinn v. State, 479 So. 2d 706, 708 (Miss. 1985))). Walker opened the door by

voluntarily telling the jury of his own volition that he had refused to give the police a

statement. See Fleming v. State, 604 So. 2d 280, 289 (Miss. 1992) (“It is axiomatic that a

defendant cannot complain on appeal concerning evidence that he himself brought out at

trial.” (citing Singleton v. State, 518 So. 2d 653, 655 (Miss. 1988))). Therefore, we find that

the State did not violate Walker’s due process rights or his right to a fair trial.

                                       CONCLUSION



       6
        On rebuttal, the prosecutor asked Investigator Sledge, “[d]o you ever force
individuals to give you a statement?” This question, to which no objection was made, could
be seen as a bridge too far by the prosecution if not for the defendant’s earlier attack on
Investigator Sledge’s character. Walker testified spontaneously that Sledge had threatened
him with a $100,000 bond, which could cause a reasonable juror to question Sledge’s
character or his integrity. Therefore, the State’s question sought to restore Investigator
Sledge’s character as an ethical police officer, which, under the circumstances, was
permissible.

                                              14
¶29.   This Court finds that Walker’s sufficiency of the evidence claim in regard to Count

II is procedurally barred. We find also that Walker opened the door for Investigator Sledge’s

testimony by telling the jury himself that he had refused to give a statement to the police.

Accordingly, this Court affirms Walker’s conviction and sentence.

¶30.   AFFIRMED.

    RANDOLPH, C.J., KING, P.J., COLEMAN,                           MAXWELL,         BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




                                             15
