                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-KA-01298-SCT

JOHNNY LEE SADDLER a/k/a JOHNNY
SADDLER

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          09/05/2018
TRIAL JUDGE:                               HON. LEE J. HOWARD
TRIAL COURT ATTORNEYS:                     JASE DALRYMPLE
                                           STEVE WALLACE
                                           SCOTT COLOM
                                           SCOTT ROGILLIO
COURT FROM WHICH APPEALED:                 LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                           BY: JUSTIN T. COOK
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ALICIA AINSWORTH
DISTRICT ATTORNEY:                         SCOTT COLOM
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 04/30/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    Johnny Lee Saddler argues on appeal that his constitutional and procedural rights were

violated during trial court proceedings. Saddler argues that because he invoked his right to

counsel and his right to silence, the trial court erred by denying the motion to suppress his

confession. Saddler further argues that his trial counsel was constitutionally inadequate.
Finally, Saddler argues that the trial court erred by allowing the State to present improper lay

opinion evidence.

                         FACTS AND PROCEDURAL HISTORY

¶2.    Thirteen-year-old Amy1 is Jessica Orr’s aunt’s daughter, but Amy has lived with Orr

since her birth due to her mother’s death. Amy is a special needs child and has ADHD. On

September 2, 2016, Jessica Orr walked down the street to pick up her children, who had been

playing in the neighbor’s pool. As Orr approached the house, she claims that she saw Amy

with Johnny Saddler. Orr stated, “Her pants were down. His pants were down. Her shirt was

up. He was not patting, he was fondling her breast, and his other hands was inside her pants.”

The neighbor Tommy Shelton was present at the pool, but he did not witness the alleged

incident. Orr brought her children back home and called the police.

¶3.    The responding officer was told by Saddler’s probation officer to arrest Saddler. After

a few days, Saddler was interviewed by Investigator Mary Hudgins and Lieutenant Tony

Cooper. Hudgins advised Saddler of his Miranda rights, and Saddler indicated that he

understood them. See Miranda v. Arizona, 384 U.S. 436 (1966). Hudgins then read the

waiver-of-rights form to Saddler and asked if he was willing to talk to her. Saddler signed

the waiver-of-rights form and agreed to speak with the investigators.

¶4.    During the interview, Saddler first claimed that he never touched any of the children.

Saddler claimed that Orr was yelling as she approached and that she called him a sex

offender. However, Saddler eventually changed his story after further questioning. Saddler



       1
           Fictitious names are used for the minor children.

                                               2
stated, “I’m gonna leave it right there and let the courts decide. I didn’t but I did it. I gotta

leave it, I gotta leave it at that.” Saddler claims that his statement was an attempt to invoke

his right to remain silent and his right to counsel. However, Saddler continued answering

questions. When asked about his previous conviction for fondling, Saddler claimed that he

had touched the victim in the previous case because “she was maturing and she was already,

ah, she was flirty.” When asked about the incident with Amy, Saddler admitted that after

Amy rubbed his head, “I touched her. I pushed her away. I did touch her. And I touched

her up here.” Saddler continued, “Sure, I wanted to touch it . . . You know? I wanted to

touch her, so I pushed her away by touching her tits.” Cooper asked, “Your intent was to feel

her but make it look like you were pushing her,” and Saddler answered, “yeah.” Saddler later

explained, “young girls are just, they amaze me . . . when they begin to mature . . . I have that

desire to want to touch them, but not interact in any other kind of way. I don’t want to have

sex with them or nothing like that.”

¶5.    The only other adult present, Tommy Shelton, did not have a clear view of the alleged

incident. Shelton testified that he did not believe the incident occurred. Shelton further

testified that he was unaware that Saddler had confessed.

                                STANDARD OF REVIEW

¶6.    The standard of review for the admission of a confession is as follows: “[d]etermining

whether a confession is admissible is a finding of fact which is not disturbed unless the trial

judge applied an incorrect legal standard, committed manifest error, or the decision was

contrary to the overwhelming weight of the evidence.” Hunt v. State, 687 So. 2d 1154, 1159



                                               3
(Miss. 1996) (internal quotation marks omitted) (quoting Lee v. State, 631 So. 2d 824, 826

(Miss. 1994)). “This Court will reverse a trial court’s denial of a motion to suppress only if

the ruling is manifest error or contrary to the overwhelming weight of the evidence.” Barnes

v. State, 30 So. 3d 313, 316 (¶ 8) (Miss. 2010) (citing Ruffin v. State, 992 So. 2d 1165, 1169

(¶ 8) (Miss. 2008)). “Once a trial judge determines admissibility, the defendant/appellant

faces a heavy burden in trying to reverse on appeal.” Ruffin v. State, 992 So. 2d 1165, 1169

(¶ 8) (Miss. 2008) (citing Greenlee v. State, 725 So. 2d 816, 826 (¶ 26) (Miss. 1998)).

                                       DISCUSSION

I.     The trial court did not err by denying Saddler’s motion to suppress his
       confession based on an alleged violation of his Miranda rights.

¶7.    Saddler argues that the trial court erred by denying his motion to suppress his

statements based on the fact that he invoked his right to remain silent and his right to an

attorney. Investigator Hudgins advised Saddler of his Miranda rights, and Saddler indicated

that he understood them. During the interview, Saddler stated, “I’m gonna leave it right there

and let the courts decide. I didn’t but I did it. I gotta leave it, I gotta leave it.” Saddler

argues that the statement was a clear and unequivocal invocation of his right to remain silent

and his right to counsel.

       1.     Saddler is procedurally barred from arguing that his right to
              counsel has been violated.

¶8.    At trial, Saddler’s motion to suppress was based on his right to remain silent, and the

motion to suppress mentioned nothing of his right to counsel. “[A]sserting grounds for an

objection on appeal that differ[ ] from the ground given for the objection at the trial level



                                              4
does not properly preserve the objection for appellate review.” Roberts v. State, 234 So. 3d

1251, 1262 (¶ 29) (Miss. 2017) (second alteration in original) (internal quotation marks

omitted) (quoting Woodham v. State, 779 So. 2d 158, 161 (¶ 12) (Miss. 2001)). Saddler

failed to argue at trial that his right to counsel had been violated, thus he is procedurally

barred from raising the issue on appeal.

       2.     Saddler’s Miranda right to remain silent was not violated.

¶9.    Saddler further argues that his right to remain silent has been violated. Saddler

claimed in his motion to suppress and here that his statement, “I’m gonna leave it right there

and let the courts decide. I didn’t but I did it. I gotta leave it, I gotta leave it,” was an

invocation of his right to remain silent. The statement, while possibly an ambiguous attempt

to invoke his right to remain silent, was not an unequivocal and unambiguous assertion of

his rights.

¶10.   Saddler cites Berghuis v. Thompkins in his motion to suppress, which extends the

Davis v. United States ambiguity analysis to the right to remain silent. See Berghuis v.

Thompkins, 560 U.S. 370, 381 (2010); Davis v. United States, 512 U.S. 452 (1994). The

United States Supreme Court in Davis held that invocation of the right to counsel “requires,

at a minimum, some statement that can reasonably be construed to be an expression of a

desire for the assistance of an attorney.” Davis, 512 U.S. at 459 (internal quotation marks

omitted) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). The United States

Supreme Court in Berghuis held, “there is no principled reason to adopt different standards

for determining when an accused has invoked the Miranda right to remain silent and the



                                              5
Miranda right to counsel at issue in Davis.” Berghuis, 560 U.S. at 381. However, the Court

continued,

       There is good reason to require an accused who wants to invoke his or her
       right to remain silent to do so unambiguously. A requirement of an
       unambiguous invocation of Miranda rights results in an objective inquiry that
       “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how
       to proceed in the face of ambiguity.

Id. at 381 (alterations in original) (quoting Davis v. United States, 512 U.S. 452, 458-59

(1994)).

¶11.   Saddler argues that Holland v. State, 587 So. 2d 848 (Miss. 1991) should apply,

arguing that it should apply to ambiguous references to the right to remain silent. “If a

defendant makes equivocal or ambiguous utterances which could be interpreted as an

invocation, then the trend is to require cessation of interrogation except for strictly-limited

inquiry for clarification purposes.” Holland, 587 So. 2d at 856 (emphasis omitted) (citing

United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988), abrogation recognized in Diaz v.

Senkowski, 76 F.3d 61, 63 (2d Cir. 1996)). However, the statement was clarified in

Chamberlin, when the Mississippi Supreme Court held,

              This Court previously has held that if an officer understands only that
       the suspect might be invoking the right to counsel, an officer must cease
       interrogation, except for inquiries made to clarify the defendant’s request.
       Holland, 587 So. 2d at 856 (emphasis added). The United States Supreme
       Court declined to require such a procedure but noted in Davis that where the
       officers followed the same procedure as adopted by this Court, such a
       procedure is “good police practice for the interviewing officers.” Davis, 512
       U.S. at 461.

Chamberlin v. State, 989 So. 2d 320, 333 (¶ 38) (Miss. 2008).




                                              6
¶12.   In Moore v. State, the Court held, “Mississippi law is well-established, in cases

involving the invocation of the right to counsel, that an interviewing officer may clarify an

ambiguous invocation.       Today, we extend this same analysis to cases involving the

invocation of the right to remain silent.” Moore v. State, 287 So. 3d 905, 914 (¶ 33) (Miss.

2019) (citation omitted).

¶13.   Holland does not apply in the case sub judice. The Court has since adopted the

position taken in Davis that clarifying questions are not required when a suspect ambiguously

asserts their rights. Barnes v. State, 30 So. 3d 313, 318 (¶ 15) (Miss. 2010). “Pursuant to

Davis, Barnes failed to make and unambiguous, unequivocal request for an attorney, and [the

officer] had no obligation to stop questioning her.” Id. (citing Davis v. United States, 512

U.S. 452, 461-62 (1994)). Additionally, the Court in Franklin v. State stated, “[n]ever has

this Court held that the Mississippi Constitution provides greater protection than the U.S.

Constitution to criminal suspects who invoke the right of counsel during custodial

interrogations.” Franklin v. State, 170 So. 3d 481, 491 (¶ 37) (Miss. 2015). The Court in

Franklin held that Mississippi does not require the officer to ask clarifying questions after

ambiguous utterances. Id. While cases such as a Holland and Moore have stated that it is

good police practice for officers to ask clarifying questions, Franklin and Barnes held that

such clarifying questions are not required.

¶14.   Saddler’s statement was not an explicit invocation of his right to remain silent.

Further, even if the statement was an ambiguous assertion of his right to remain silent, the

officer was not required to ask clarifying questions. Based on the highly deferential standard



                                              7
of review, the trial judge did not commit manifest error when he denied Saddler’s motion to

suppress.

       3.        Saddler effectively waived his rights.

¶15.   In the alternative, Saddler argues that his waiver of rights was ineffective. Saddler

is procedurally barred from making the argument because he raised the issue for the first time

on appeal. Roberts v. State, 234 So. 3d 1251, 1262 (¶ 29) (Miss. 2017) (quoting Woodham

v. State, 779 So. 2d 158, 161 (¶ 12) (Miss. 2001)).

II.    Saddler’s counsel was not ineffective.

¶16.   “Whether a defendant has received ineffective assistance of counsel is a question of

law reviewed de novo[.]” Taylor v. State, 167 So. 3d 1143, 1146 (¶ 5) (Miss. 2015). “‘[T]he

defendant must show that counsel’s performance was deficient’” and “‘that the deficient

performance prejudiced the defense.’” Id. (quoting Strickland v. Washington, 466 U.S.

668, 687 (1984)). Additionally, ineffective assistance of counsel is usually not considered on

direct appeal:

       It is unusual for this [c]ourt to consider a claim of ineffective assistance of
       counsel when the claim is made on direct appeal . . . . [t]his court will rule on
       the merits on the rare occasions where “(1) the record affirmatively shows
       ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the
       record is adequate to allow the appellate court to make the finding without
       consideration of the findings of fact of the trial judge.”

Wilcher v. State, 863 So. 2d 776, 825 (¶ 171) (Miss. 2003) (citations omitted) (quoting

Aguilar v. State, 847 So. 2d 871, 878 (¶ 17) (Miss. Ct. App. 2002)).




                                               8
¶17.   However, ineffective assistance of counsel claims may be raised on direct appeal if

“the presented issues are based on facts fully apparent from the record.” Parker v. State, 30

So. 3d 1222, 1232 (¶ 36) (Miss. 2010) (citing Archer v. State, 986 So. 2d 951, 955 (¶ 16)

(Miss. 2008); Miss. R. App. P. 22(b)). In the case sub judice, the issues presented by Saddler

are based on facts fully apparent from the record, thus the claim is proper on direct appeal.

¶18.   Saddler’s counsel was not ineffective. Saddler argues that his counsel’s failure to

object to the use of the interrogation video, prior criminal history, and fearmongering in

closing argument was ineffective assistance of counsel because it prejudiced his defense.

However, “counsel’s choice of whether or not to file certain motions, call witnesses, ask

certain questions, or make certain objections fall within the ambit of trial strategy[.]” Bell

v. State, 879 So. 2d 423, 438 (¶ 49) (Miss. 2004) (internal quotation marks omitted) (quoting

Jackson v. State, 815 So. 2d 1196, 1200 (¶ 8) (Miss. 2002)). Saddler argues that the trial

court erred by allowing the State to use his interrogation video as evidence because the video

contained hearsay statements. The alleged hearsay in the interrogation was only arguably

hearsay. “Hearsay is defined as a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Wright v. State, 958 So. 2d 158, 167 (¶ 25) (Miss. 2007) (citing Miss. R. Evid. 801(c)). The

statements of third parties in the interrogation video were arguably not used to prove the truth

of the matter asserted, thus Saddler’s counsel’s failure to object was within the ambit of trial

strategy.




                                                9
¶19.   Evidence of Saddler’s prior acts was admissible. “[W]hen the sexual acts bear

‘overwhelming similarities’ to the conduct at issue, they are ‘undeniably’ admissible under

Rule 404(b) as both motive and as evidence of a ‘common plan, scheme, or system.’”

McGrath v. State, 271 So. 3d 437, 441 (¶ 16) (Miss. 2019) (quoting Green v. State, 89 So.

3d 543, 550, n.19 (¶ 17) (Miss. 2012)). The evidence of Saddler’s prior acts was admissible,

thus his counsel was not ineffective for failing to object to the use of the prior acts.

¶20.   Finally, Saddler’s counsel’s failure to object to comments made during closing

arguments was not ineffective assistance of counsel. “Attorneys on both sides are generally

afforded broad latitude during closing arguments.” Moffett v. State, 156 So. 3d 835, 857 (¶

61) (Miss. 2014) (citing Wright v. State, 958 So. 2d 158, 161 (¶ 7) (Miss. 2007)). Because

of the broad latitude afforded to counsel during closing arguments, Saddler’s counsel’s

failure to object was in the ambit of trial strategy and does not give rise to a claim of

ineffective assistance of counsel.

III.   Cooper’s testimony was not improper lay opinion testimony.

¶21.   “The standard of review regarding the admission or exclusion of evidence is abuse of

discretion.” Palmer v. State, 939 So. 2d 792, 794 (¶ 7) (Miss. 2006) (citing Jones v. State,

904 So. 2d 149, 152 (¶ 11) (Miss. 2005)). “The admissibility of evidence rests within the

discretion of the trial court, and reversal will be appropriate only when an abuse of discretion

resulting in prejudice occurs.” Id. at 794-95 (citing Clemons v. State, 732 So. 2d 883, 887

(¶ 18) (Miss. 1999)).




                                              10
¶22.   Saddler argues that Cooper gave impermissible opinion testimony when the State

asked, “Based on your experience, is it common for a person to deny a crime before they

admit it when they’re being questioned[?]” Cooper answered, “[y]es, sir, majority of them

do.” Saddler objected to the testimony as improper lay opinion testimony. The State argues

that the statement is admissible under Mississippi Rule of Evidence 701, because it was

based on the witness’s perception, helpful for understanding a fact in issue, and not based on

specialized knowledge. Saddler argues that Cooper’s opinion is based on his experience as

a police officer, thus the opinion would be improper as lay testimony. However, the

testimony offered by Cooper was neither expert opinion testimony nor lay opinion testimony.

Instead, Cooper offered fact testimony based on his perceptions as a police officer. There

is a fine line between fact testimony and opinion testimony:

       The question is whether these two fact witnesses crossed an impermissible line
       between fact testimony and expert opinion when they stated Mrs. Scafidel was
       anemic. We conclude they did not . . . . Just as they testified as fact witnesses
       that she had fever, chills, and diarrhea, so could they state, in our opinion, that
       she was anemic without becoming expert witnesses.

Scafidel v. Crawford, 486 So. 2d 370, 372 (Miss. 1986).

¶23.   Cooper was asked whether the majority of suspects deny a crime before they admit

to it. His answer in the affirmative was not an opinion that he formed based on his training

as an investigator but instead was a fact that he observed during the course of his work. “We

note that these witnesses were not retained or tendered as experts, but were full time hospital

employees during the time in question and offered only fact testimony regarding hospital

practice and procedures[.]” Kern v. Gulf Coast Nursing Home of Moss Point, Inc., 502 So.



                                               11
2d 1198, 1200 (Miss. 1987). Cooper was simply offering fact testimony about investigation

practice and procedures. “This Court has held that a full-time employee in a case such as this

testifying on his personal knowledge rather than any expertise he possessed would not be

considered an expert witness.” Id. Cooper was simply offering fact testimony that illustrated

the procedures used during an investigation.

¶24.   The separate opinion’s citation of Chaupette v. State, 136 So. 3d 1041 (Miss. 2014),

does not persuade us otherwise. The Chaupette Court did not quote or give much context

to the testimony there at issue. Chaupette, 136 So. 3d at 1047 (¶ 12). However, it appears

that Banano, the witness in that case, testified that children whom she did not interview, i.e,

from outside her personal knowledge, provided more information over time. Id. As seen

from Cooper’s testimony, quoted above, he testified only about his personal experience in

interviewing witnesses. The separate opinion attempts misdirection when pointing out that

Banano’s statement regarding the expected behavior of children is based on nothing more

than her personal knowledge. The basis of Banano’s opinion is not the issue. The issue is

that her statement was an opinion rather than factual testimony about her own experience

because she sought to extrapolate from her experience to testify about what children do in

similar cases about which she had no personal knowledge. Id. Again, Cooper testified only

about his own experience and, therefore, about a fact within his personal knowledge.

¶25.   “Abuse of discretion is found when the reviewing court has a ‘definite and firm

conviction that the court below committed a clear error of judgment in the conclusion it

reached upon weighing of relevant factors.’” Quitman Cty. v. State, 910 So. 2d 1032, 1042



                                              12
(¶ 29) (Miss. 2005) (quoting Caracci v. Int’l Paper Co., 699 So. 2d 546, 556 (¶ 16) (Miss.

1997)). The reviewing court “must let stand a trial judge’s findings of evidentiary or ultimate

fact when substantial evidence in the record supports those findings, or when the findings are

not ‘clearly erroneous.’” Id. (internal quotation marks omitted) (quoting Crowe v. Smith, 603

So. 2d 301, 305 (Miss. 1992)). Based on the highly deferential standard of review, the trial

judge did not abuse his discretion when he allowed the officer to testify about his experience

with criminal investigations.

¶26.   Additionally, Saddler was not prejudiced by the admission of the testimony. “The

question is whether there is a reasonable possibility that the evidence complained of might

have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86–87 (1963).

Saddler’s confession was properly admitted evidence sufficient to support a jury verdict.

Cooper’s statement did not contribute to the conviction or prejudice Saddler’s defense.

                                      CONCLUSION

¶27.   Saddler waived his rights, and his confession was properly admitted. Saddler’s

counsel at trial was not ineffective. Finally, the statement made by Cooper was fact

testimony, and its admission is not reversible error because it did not prejudice Saddler’s

defense. The judgment of the trial court is affirmed.

¶28.   AFFIRMED.

    RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND
GRIFFIS, JJ., CONCUR. KITCHENS, P.J., CONCURS IN PART AND IN RESULT
WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.




                                              13
    KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND IN
RESULT:

¶29.   Respectfully, I concur in part and in result. I would hold that the trial court erred by

allowing Officer Tony Cooper, a fact witness, to give expert testimony. Because the error

was harmless, I agree with the majority’s decision to affirm Johnny Lee Saddler’s conviction

of fondling, albeit for different reasons than those cited by the majority in its discussion of

Officer Cooper’s testimony.

¶30.   Officer Cooper was one of the police officers who interviewed Saddler and obtained

his confession. During direct examination, the prosecutor asked Officer Cooper about his

experience interviewing suspects. Officer Cooper testified that he had interviewed thousands

of suspects during his sixteen-year career in criminal investigation. He testified about various

aspects of his training in suspect interviewing, such as in the detection of subtle signs that

a suspect is trying to deceive the interviewer. During this colloquy, the prosecutor asked

Officer Cooper, “Now, during your experience is it common for criminal suspects to deny

crimes for a significant period of time?” Saddler objected to this question because Officer

Cooper had not been qualified as an expert witness. After the trial court overruled the

objection, the prosecutor asked, “Based on your experience, is it common for a person to

deny a crime before they admit it when they’re being questioned?” Officer Cooper

responded, “Yes, sir, [the] majority of them do.” He testified that, when a suspect denies

guilt, the officer should rely on the case file to determine how to proceed.

¶31.   Saddler argues that Officer Cooper’s testimony that, based on his experience, guilty

suspects commonly deny crimes while being interviewed was expert testimony and was


                                              14
impermissible because Officer Cooper had not been qualified as an expert. Mississippi Rule

of Evidence 702 provides,

       A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise if:

       (a) the expert’s scientific, technical, or other specialized knowledge will help
       the trier of fact to understand the evidence or to determine a fact in issue;

       (b) the testimony is based on sufficient facts or data;

       (c) the testimony is the product of reliable principles and methods; and

       (d) the expert has reliably applied the principles and methods to the facts of the
       case.

M.R.E. 702. In contrast, Mississippi Rule of Evidence 701 provides that

       If a witness is not testifying as an expert, testimony in the form of an opinion
       is limited to one that is:

       (a) rationally based on the witness’s perception;

       (b) helpful to clearly understanding the witness’s testimony or to determining
       a fact in issue; and

       (c) not based on scientific, technical, or other specialized knowledge within the
       scope of Rule 702.

M.R.E. 701.

¶32.   The majority finds that Officer Cooper did not render an expert opinion but rather

recited a fact that he had learned in his experience as a police officer: that the majority of

suspects interviewed commonly deny having committed a crime before they admit it.

“[W]here, in order to express the opinion, the witness must possess some experience or

expertise beyond that of the average, randomly selected adult, it is a M.R.E. 702 opinion and



                                              15
not a Rule 701 opinion.” Cotton v. State, 675 So. 2d 308, 311 (Miss. 1996) (internal

quotation marks omitted) (quoting Sample v. State, 643 So. 2d 524, 530 (Miss. 1994)).

Officer Cooper’s testimony that suspects commonly deny committing a crime before

admitting it was an opinion about the behavior of suspects based on his experience as a

police officer, experience that is “beyond that of the average, randomly selected adult.”

Therefore, it was expert testimony. Because Officer Cooper had not been qualified as an

expert, the trial court abused its discretion by allowing that testimony. Cotton, 675 So. 2d at

312.

¶33.   This case is almost exactly on point with Chaupette v. State, 136 So. 3d 1041, 1047

(Miss. 2014), another fondling case. In Chaupette, Deslie Banano, a psychotherapist who

was not qualified as an expert, testified as a fact witness about her therapeutic sessions with

the child victim. Id. Banano testified that, as time went on, the child had revealed additional

details about the abuse. Id. Banano then said that, “in her experience, children generally tell

more information over time.” Id. This Court held that “Banano did enter the realm of expert

testimony when she relied on her experience to opine that children generally provide more

information over time.” Id. But because the admission of her testimony was harmless, the

Court found no reversible error. Id. No difference exists between Officer Cooper’s testimony

about how suspects behave in interviews based on his experience and Banano’s testimony

about how children behave in interviews based on hers.2 Similarly, in Croft v. State, 283 So.

       2
         I find the majority’s attempt to distinguish Chaupette unpersuasive. The majority
says that Banano “testified that children whom she did not interview, i.e, from outside her
personal knowledge, provided more information over time,” but that here, Officer Cooper
did not give expert testimony because he testified from his personal experience interviewing

                                              16
3d 1, 10 (Miss. 2019), this Court found that a police officer’s testimony had strayed into the

realm of expert opinion testimony when he testified from his training, experience, and

expertise about the behavior of gang members. Based on our clear precedent, Officer Cooper

rendered inadmissible expert testimony.

¶34.   Although I find merit in Saddler’s argument that the trial court abused its discretion

by allowing Officer Cooper to give expert testimony, I would find that the error was

harmless. “Harmless-error analysis prevents ‘setting aside convictions for small errors or

defects that have little, if any, likelihood of having changed the result of the trial.’” Smith

v. State, 136 So. 3d 424, 435 (Miss. 2014) (quoting Chapman v. California, 386 U.S. 18,

22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). Saddler initially had denied having fondled the

victim. All Officer Cooper’s testimony did was explain that it is common for a guilty suspect

initially to deny wrongdoing in a police interview. Saddler ultimately confessed and copious

other evidence, including eyewitness testimony, established his guilt. Because it had little

chance of having changed the outcome of Saddler’s trial, the error in admitting Officer




witnesses. Maj. Op. ¶ 24. First, nothing in Chaupette indicates that Banano’s opinion was
based on information outside her personal experience interviewing children. To the contrary,
we said in Chaupette that “Banano did enter the realm of expert testimony when she relied
on her experience to opine that children generally provide more information over time.”
Chaupette, 136 So. 3d at 1047 (emphasis added). Second, even when a witness such as
Officer Cooper or Banano bases an opinion on personal experience, if that experience is
outside the realm of the “experience or expertise . . . of the average, randomly selected
adult,” the opinion is expert testimony. Cotton, 675 So. 2d at 311 (quoting Sample, 643 So.
2d at 530). Just as Banano did in Chaupette, Officer Cooper rendered opinion testimony
because he extrapolated from his experience to reach a conclusion about what the majority
of suspects commonly do in interviews.

                                              17
Cooper’s testimony was harmless. I agree with the majority that Saddler’s fondling

conviction must be affirmed.

      KING, P.J., JOINS THIS OPINION.




                                       18
