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 BAGW ELL KELLY KIMBERLY DENICE McCRAY ROSHARW IN LEMOYNE W ILLIAMS STEPHANIE ALEXIS BROW N COURT FROM W HICH 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 “Peanu t ” Wa l k e r w a s c o n v i c t e d o f one count of f ondling and two counts of sexual battery

. W a l ker was sentenced to serv e f i f t e e n y ears on Count I, twenty -f

i ve y e a rs o n C ount II, and twenty -f ive y ears on Count I II. These three
sentences were m ade to run concurrently

. W alker now appeals his conviction. He asserts that the evidence was insuf

f icient to support the verdict only on Count II, digi t a l s e xualpenetration. W alker contends also that his due process r ights and his right to a f air trial were violated b ecause the State a dduced testim o ny regarding W alker’s p ost-Miranda s ilence. See Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L

. E d

. 2 d 6 9 4 (1966). T he State responds that the e vidence is suf f icient t o support the verdict on Co u nt II and that W alker opened the d oor f

or the S tate when he testif ied that he h ad ref

u sed t o give a statem ent to the police. W e agree with the State and af f i rm W alker’s conviction. STATEMENT OF THE FACTS ¶2. On a night in 2014, Sarah 1 told her m aternal grandm o ther that w hen S arah was eleven
y ears old, Peanut assaulted her sexually on several occasions between May 1, 2013, and June 30, 2014. At the tim e the alleged sexual assaults occurred, Sarah lived with her two siblings and their grandm o ther on Eight S treet in Clarksd a le, Mississippi, where Sarah said the crim es had occurred. 2 A f

ter Sarah told her grandm other about Peanut, the grandm other telephoned her niece in Chicago, Illinois, to i nf orm her. Som e tim e af

ter she had spoken with her niece, the grandm other called the police. ¶3. On July 2 4, 2014, Of f icer Jacob Braxton of the Clarksdale Police D e p a r tm ent was dispatched t o the residence on S pruce Street in response to a report that a child had been touched inappropriately

. Once on the scene, Of f icer Braxton spoke with the child’s m other,

1 T o p ro tect th e ch i ld v ictim ’s id en tity , w e h av e u sed a f ictitio u s n am e. S arah w as b o rn Jan u ary 2 2 , 2 0 0 2

. S h e w as elev en y ears o ld in 2 0 1 3 , th e y ear o f th e alleg ed assau lts. S h e w as sev en teen w h en sh e testif i edat trial.

2 A t so m e p o in t af

ter th e a l l eg ed assau l ts o ccu rred , th e resid en ce o n E i g h t S treet b u rn ed d o w n . T h e g ran d m o th er ev en tu ally m o v ed to a h o u s e o n S p ru ce S treet. I t w as w h ile S arah w as liv i n g o n S p ru ce S treet th at sh e to ld th e g r a n d mo th er s h e h ad b een to u ch ed in ap p ro p riately

b y P ean u t. 2Ruby Sm ith, 3 and the child’s grandm other. Both told Of f icer Braxton that the m an who had sexually a ssaulted Sarah went by the n am e Peanut. The c a se was turned over t o Investigator Charles Sledge. ¶4. Investigator Sledge testif i ed that he b ecam e aware of this case i n Septem ber of 2015. 4
Around that tim e, Sledge went t o t h e r e s i d ence on Spruce Street and s poke with the grandm other, who gave W alker’s nam e as a potential suspect. ¶5. On October 21, 2015, Sledge dro v e S a r a h a n d her m other to Oxf ord, Mississippi, where an interview of

the child was conducted by the Fam ily

Crisis Services of

Northwest Mississippi. The interview was c onducted by Tom iko Mackey , who testif ied that during the

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

a two-way m irror, Investigator S ledge witnessed the i nterview and subsequently caused the issuance of an arrest warrant f or W alker. W alker was arrested on Septem b er 22, 2016. ¶6. On Decem

ber 7, 2016, W alker was indicted and charged with one c ount of f ondling (Count I), two counts of sexual battery (Count II and III), and one count o f a t t e mp ted f ondling (Count IV) 5 . Count II of the indictm ent, which is at issue on appeal, alleged That Gregory W alker A/K/A “Peanut,”

. . . d id unlawf ully , w illf

ully , and f eloniously , e ngage in s e x u al penetration with [ Sarah], a f em a l e child under the a g e o f f

ourteen (14) y ears and Gregory W alker was twenty f our (24) or m ore m onths older than the child, b y i nserting his f ing er into the vaginal opening of

[ Sarah].

3 A f ictitio u s n am e is g iv e n th e m o th er to p ro tect th e ch ild ’s id en tity

. 4 It is u n clear f

ro m th e reco rdw h y

th is ap p ar en t d elay i n th e in v estig atio n o ccu rred

. 5 C o u n t IV later w as n o lle p ro ssed b y th e S tate. 3¶7. At trial, the g randm other testif i ed that W alker w ould visit her h ouse o n E ight Street. Sarah’s m other and grandm other identif ied W a lker in court as being the person whom Sarah was calling Peanut. ¶8. Sarah testif

ied a t t r i a l t h a t w h e n s h e w as e l even y ears o ld and living with her grandm other on Eight Street, she was s exually assaulted by Peanut o n at least three dif f erent occasions during the summ e r of 2013. ¶9. According to Sarah’s testim ony , the f irst tim e Peanut touched her was when she was sitting on a couch w atching television. Sarah said that W alker sat on the couch, looked at her, then “ p ut his hand b e hind a pillow and he put—touch m e in my skirt, like, i n t h e i n s i d e.” Sarah clarif

i ed that W alker had specif ically t ouched her butt, her chest, and h er private area. The prosecutor asked S arah whether the r e h a d been an other incident between W alker and her, t o which she responded that “[ h]e try to put h is s tuf f in my butt and in my private area.” Sarah testif

ied a lso that on o ne occasion W a lker pull e d d o w n h er p ants and assaulted her with his tongue. S arah identif ied W alker a s b e i n g the individual nicknam ed Peanut who sexually assaulted her. ¶10. Early i n the child’s t estim o ny , the pros e c u t o r a s k e d a q u e s tion to which W alker’s attorney objected on the ground that the prosecutor was leading the w itness. The prosecutor argued that Sarah was a child w itness, and the S tate would have to lead her to som e degree. The judge responded, “I’ll allow it f or now.” ¶11. Further on in the S tate’s c ase, the prosecutor asked Sarah, “Did he ever take his f i nger and p lace it any

where? ” Again, Wa l k e r ’s a ttorney objected to the State’s q uestion on the

4basis that the State was leading Sarah, “specif ically about the elem ents o f the crim e.” Bef ore W a lker’s objection, however, S a r a h a n swered the prosecutor’s question, stating “[ i]n the inside of my private area.” The f

ollowing then transpired: The Court: Do try

to give a what happened ty pe of open-ended question. State: Yes, sir. The Court: And if

y ou—Let’s try

that f irst. State: Yes, sir. The State then asked Sarah another series of leading questions: State: So y ou told us about the touching part, right? Sarah: Yes, sir. State: And y ou told us about the other part, right? Sarah: Yes, sir. ¶12. W a lker testif

ied in his own def

ense. He adm itted to being at the grandm other’s house

on several d if

f erent o c c asions. W alker testif ied that he never was alone w ith Sarah and claim ed repeatedly

that he did not comm it the alleged acts. ¶13. The f

ollowing exchange o ccurred between the prosecu t i o n a n d Wa lker on crossexam ination: State: But y ou h eard this child com e in and em otionally testif y exactly what happened, right? A: Yes State: And there is no r eason that y ou can com e up with as to w hy she w ould m ake that up; do y ou, ’cause she had nothing against y ou, right?

5A: I d on’t – No. I told y o u f rom the kiddy stuf

f

. And then [ Sarah’s grandm other] – I don’ t k n o w ’cause it’s all a bout [ the grandm other] ’cause i t’s not a

bout m e, sir. I m e an, it

– all this about [ the grandm other]. She the one who got the attitude against m e, the grudge against m e. I m ean, she the one who s a i d s h e saw m e a ll this

– ain’t none of this just

– this stuf f be – people be saying took p l a c e , s ir. I m e an, I w as seeing [ Ruby S m ith] all

– all along, like, all this stuf f even took place and she never approach m e about any thing. I m e an – And then when the p olice cam e to m e, he tried to m ake m e testif y and give him what he want; if

not, he would give m e $100,000 bond. State: W ell, M r. W alker, y ou’re being a little untruthf ul b e c a u s e the of

f i cer never told y ou to testif

y against y ourself

. A: He try and ge t me t o g i ve a o pen statem ent. And so he told m e – his exact words, since he wasn’t g onna – I wasn’t g onna tell him any thing, he will give m e $100,000 bond. State: Who was that of

f icer? A: Of f icer – we call him

“Evay .” State: Okay

. A: And s o w hen it end, w e w a n ted to talk, and he told us, don’t worry abo u t it, and just w ent t o question m e. And so he say he ain’t wanna hear the shit and end that. And they gave m e a bond.

. . . . State: Let m e just m ake sure I’m clear. You heard about these allegations in 2015; y ou did nothing, right? A: Did nothing. State: Serious allegations, right? Then y ou said that when y ou went to speak with this of

f icer, that he prom i se y ou $100,000 bond to say he – A: Uh, uh, u h , n o, no, no, no. He – When they got m e, i nterrogated m e, they pi c k me up o n my traf f ic violation an d they h ad took m e over there, they said they had a hold, a f elony hold to talk to an i nvestigator. Now, this when I had approached Of f icer Sledge, “Evay

. ” This when I walked in. He was asking m e som e questions an d t o l d me t h at he

6needed to know som ething and I wouldn’t give h im a statem ent; that’s what I ’m talkin g about. Not no other tim e, sir. This was interrogation–during interrogation tim e. ¶14. Af ter the def ense rested, the State called Investigator Sledge as a rebuttal witness. The prosecutor asked Sledge whether he had threatened to gi v e Wa l ker a $100,000 bond. In
response, Sledge testif

ied that he h ad attem

p ted to question W a l ker af ter he was arrested but that W alker ref

used to give a statem ent. Sledge also denied that he had tried to f orce W alker to give a statem ent. ¶15. On February 12, 2019, the jury f ound W alker guilty on a ll three counts. W alker was sentenced to serve concurrent sentences of f if teen y ears f

or Count I, twent y - f

i v e y ears f

or Count I I, and twenty

- f

i ve y e ars f

or Count I I I

. W alker f

i led a m otion f

or j udgm ent notwithstanding the verdict or f o r a new trial, w hich was denied on February 27 , 2019.
W a lker n ow appeals, asking this C ourt to reverse and render h is conviction f or Count II and
to reverse and rem and the r em a ining counts f or a new trial. Fir s t , Wa l k e r c hallenges the suf f i ciency of the e vidence f

or Count II only

. Second, he alleges that his right to due process and a f air trail were violated by the State’s im proper comm ent o n his post-Miranda silence. STANDARD OF REVIEW ¶16. “When reviewing a c hallenge to the suf f iciency o f t h e e v i d e n c e , t h i s C o u rt will

reverse and render only i f the f acts and inf

erences ‘point in f

avor of the d ef

endant on any elem ent of the of

f ense with suf

f icient f orce that reasonable m en could not have f ound bey ond

a reasonable doubt th a t t h e d e f endant was guilty ,’

. . . .” Hughes v. State , 983 So. 2d 270, 275-76 ( Miss. 2008) (internal quotation m arks o m itted) (quoting Brown v. S tate , 965 So. 2d

71023, 1030 (Miss. 2007)). This C ourt has h e l d t h a t “[ w]hen reviewing challenges to the

suf f i ciency of the evidence, we view all evidence in the light m ost f avorable to the State.” Thom as v. State , 277 So. 3 d 532, 535 (Miss. 2019) (citing Cotton v . S tate , 1 44 So. 3d 137, 142 (Miss. 2014)). ¶17. W e have applied the plain error doctrine in c ases concerning a prosecutor’s comm e n ts

on a def endant’s post-Miranda silence. S winney v. State , 2 41 So. 3 d 599, 605-06, 609 (Miss. 2018); Robinson v. State , 247 So. 3d 1212, 1226 ( Miss. 2018). “The plain error doctrine is

em ploy e d only in situations when ‘a def endant’s substantive o r f undam ental r ights are af f ected.’” Green v. State , 1 83 S o. 3d 28, 31 (Miss. 2016) (quoting F lora v. State , 925 So. 2d 797, 811 (Miss. 2006)). “ To determ ine if p l a i n e rr o r has occurred, this Court m ust determ ine if

the trial court has deviated f rom a legal rule, whether that error is plain, clear,

or obvious, and whether that error has prejudiced the outcom e of the trial.” Swinney , 241 So. 3d at 606 ( internal quotation m arks om itted) ( quoting Conner v. State , 138 So. 3d 143, 151 (Miss. 2014)). ¶18. This Court h as held also that “[ i]t is im proper and, ordinarily , reve r s i b l e e r r o r to

comm ent on th e a c c u s ed’s post-Miranda silence.” Id. at 608 ( internal quotation m arks

om itted) (quoting Q uick v . State , 569 So. 2d 1197, 1199 (Miss. 1990)). “However, this Court has f ound that such im

proper comm ents m ay am ount to harm l ess error where evidence of the def endant’s guilt i s overwhelm ing.” Robinson , 247 S o. 3 d at 1226 (citing Riddley v. State , 777 S o. 2d 31, 3 5 ( Miss. 2000 ) )

. “Evidence of post-arrest silence is im proper, because it

8violates the accused’s right against self -incrim ination.” S

winney , 241 So. 3d at 6 08 (internal quotation m arks om itted) (quoting Austin v. State , 384 So. 2d 600, 601 (Miss. 1980)). DISCUSSION I. W a l k e r ’ s s u f

f i c i e n c y o f the evidence argum ent i s procedura l l y barred b ecause Walker’s attorney failed t o obtain a definitive ruling from the trial judge. ¶19. W a lker asserts that the evidence is insuf f icient to support a guilty v erdict f or Count
II because h is trial attorney objected to the only testim ony that p roved W a l k e r d i g i t a lly penetrated Sarah, that the trial judge sustained the o b j e c tion, and that the State f ailed to reintroduce Sarah’s testim ony through the proper m ean s . The State r esponds that the trial
court did n ot sustain W a lker’s objection but m erely a dvised the State to ask m o re open-ended questions. W alker’s argum ent is dependent o n w hether the trial judge s ustained or overruled
W a lker’s objection regarding the State’s leading question that led to Sarah’s testif ying that
W a lker had assaulted her with his f inger. ¶20. Early i n S arah’s testim ony , W alker’s attorney objected on the g r o u n d that the State

was leading the witness. The prosecutor argued that since the witness was a child, the State would have to lead “to som e degree[ .]” See Eakes v . State , 665 So. 2d 8 52, 869 (Miss. 1995) (“[ T]he ‘classic exam

p le’ of a s i t u a t i on ripe f

o r leading questions on d irect is where the witness is a child.” (citing Jones v. State , 606 So. 2d 1051 , 1059 (Miss. 1992))). The trial judge allowed the State t o lead the witne s s “ f o r n o w .” The State continued its direct

exam ination of

Sarah, which included the f ollowing exchange: State: Okay . Did he ever take his take his f inger and place it any

where?

9Sarah: In the inside of my private area. Def ense Attorney : Your H onor, I’m going to object to the leading. I m ean, he’s asking her specif

i cally about the elem ents of the crim e. If s he wants to testif y to it, that’s f

ine but she needs to do it without him asking leading questions. The Court: Do try

to give a what happened ty pe of open-ended question. State: Yes, sir. The Court: And if

y ou — Let’s try

that f irst. State: Yes, sir. ¶21. W a lker asserts that the trial judge’s response, “[ a]nd if you —[ l]et’s try that f irst[ ,]”

was the court’s way of sustaining W alker’s objection. T his Court’s precedent establishes that “[ i]t i s incum

bent on the party asserting error t o m ake a contem p oraneous objection and obtain a ruling in order to preserve the objection

. ” R onk v . State , 172 So. 3d 1112, 1128 (Miss. 2 015) (internal quotation m arks om itted) (quoting Brown v. State , 965 So. 2d 1023, 1029 (Miss. 2007)). It is not clear whether the trial judge’s response sustained or overruled
W a l k er’s objection. W e f ind that the trial j udge did not m ake a def initive, on-the-record ruling and that W alker’s attorney f ailed to ask f

or such a ruling. Because W a l ker’s attorney did not i nsist that the tria l judge m ake a def initive ruling, this issue has been w aived. See Rials v. Duckworth , 822 So. 2d 2 8 3, 288 (Miss. 2 002) (“This Court has held that a def endant waives his objection ‘ where an objection [ is] m ade and a def initive ruling [ is] not obtained

nor any c orrective action requested.’” (alterations i n original) (quoting Walters v. State , 720 So. 2d 856, 864 (Miss. 199 8 ) ) ) ; see also Cox v. State , 183 S o. 3d 36, 5 5 (Miss. 2015) (“[ T]his Court repeatedly h as held that f ailure t o obj e c t contem

p oraneously a t trial waives

1 0any claim of error on appeal.” (internal quotation m a r k s o mi t t ed) (quoting Gillett v. State ,

56 So. 3d 46 9 , 5 2 0 ( M i ss. 2010))). Theref ore, we f ind that W a l ker’s claim is procedurally barred and that Sarah’s testim ony in response to the leading question stands.
II. Post-

Miranda Silence ¶22. W a lker asserts that his right to due process and a f air trial were violated by the State because a prosecution witness, Investigator Sledge, comm ented on W alker’s post-Miranda silence. W alker adm its that his trial attorney f a iled t o m ake a t im ely objection to Investigator Sledge’s t estim ony r egarding W alker’s ref usal to give a statem ent. Nevertheless, this Court

w i ll address W alker’s due process argum ent because “ e ven without a tim ely objection, reversal m ay be required when the prosecuting attorney has comm ented upon the def endant’s right not to testif

y . ” Griffin v. State , 557 So. 2d 5 42, 552 (Miss. 1990) (citing Livingston v. State , 525 So. 2d 1300, 1306- 0 7 ( M i s s . 1988), overruled on other g rounds b y W right v. State , 958 So. 2d 158 (Miss. 2007)). ¶23. B o t h t h e U nited States Constitution and the Mississippi Constitution recogn i z e a def endant’s right a gainst self -incrim ination. U.S. Const. am end. V ; Miss. C onst. art. 3, § 26. The United States Suprem e C ourt has held that “ the use f or im peachm en t p u r

p oses of petitioners’ silence, a t the t im e of arrest and a f ter receiving M

iranda warnings, violated the Due Process Clause of the Fourteenth Am endm ent.” 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 i s im proper and, ordinarily , reversible error to comm ent on the accused’s post-M iranda s ilence. The accused’s right to

1 1b e s i l e n t t h e n i s e qually as s trong as the right not to testif y and it is e rror to comm ent on either.” Quick , 569 So. 2d at 1199. ¶24. W a lker claim s that In v e s t i g a t o r S l e d g e ’ s r e b u t t a l testim ony was not lim ited to rebutting W alker’s claim that Sledge had threatened him with a high bond ($100,000) as a

m eans of obtaining a c onf ession f rom W alker. Specif

ically , Wa l ker claim s that Sledge “exceed[ ed] the extended invitation” beca u se Sledge’s testim ony was not l im ited to discrediting W alker ’ s e a

r l i e r t e s t i m o ny ; his testim ony addressed a lso W alker’s ref usal to give

a statem ent. See Stewart v . S tate , 596 So. 2d 851, 85 3 (Miss. 1992) ( “[ T]he prosecution’s im p eachm ent privilege m ay not e xceed the invitation extended.” (citing Blanks v. State , 547 So. 2d 29 (Miss. 19 8 9 ) ) )

. Thus, W alker argues that it was plain error f or S ledge to exceed
W a lker’s “invitation” and to comm ent o n h i s post-Miranda s i lence, which c onstitutes a reversible error under Quick

. ¶25. T h e S t ate asserts that even if Sledge’s testim ony comm ents o n W a l k e r ’ s p o s t

- M i r a n d a silence, W alker opened the door f or the State b y testif

ying that he d id not give a statem ent
to the police. See Martin v. State , 970 So. 2d 723, 725 (Miss. 2007) (“It is well-settled that

a def endant who ‘opens the door’ t o a particular issue runs the risk that collateral, irrelevant,

or otherwise dam a ging evidence m ay com e in on cross-exam ination.” ( quoting Murphy v. State , 453 So. 2d 1290, 1294 (Miss. 1984))). The State is correct. ¶26. On cross-exam ination, the State asked W a lker, “[ a ] nd there is no r eason that y ou can

com e up with as to why [ Sarah] would m ake that up; do yo u, ’cause she had nothing against
y ou, right? ” In r esponse, W alke r s a i d t hat Sarah’s grandm other h ad a grudge against him

.

1 2Then, at the e nd of W alker’s response, unsolicited by the prosecution, W alker launched

spontaneously into a ram

b ling, unresponsive narrative, w h ich included, “[ a]nd then when the police cam e to m e, he tried t o m ake m e testif y and give him what he w ant; if not, he would give m e $100,000 b ond.” Follo w i n g W alker’s lengthy comm e ntary , the prosecutor said, “W ell, Mr. W alker, y ou’re being a little untruthf u l b e c a u s e the of

f icer never told y ou to
te s tif y against y ourself

.” Then W alker elaborated and said that I nvestigator Sledge had threatened him

with a $100,000 bond because W alker “wasn’t gonna tell him any thing.” ¶27. The State called Investigator Sledge as a rebuttal w itness. Sledge’s rebuttal testim ony included the f

ollowing: State: Did y ou h a v e [ W a lker] or d id y ou question h im regarding this

particular case? Sledge: I attem

pted to question h im w hen he was arrested but he ref used to give a statem e nt. State: Did y o u

try to f orce him to give y ou a statem ent? Sledge: No. State: Do y ou ever f orce individuals to give y ou a statem e nt? Sledge: No. I read them their rights and that’s their option. State: There has b een raised a statem ent or w o rds to the e f f ect of , y ou didn’t wanna hear that shit. Did y ou say that? Sledge: I—No, I don’t recall say i ng nothing like that. State: Also gonna advise y ou about bond settings o n cases. Do y ou s et

bonds on a case? Sledge: I do not.

1 3State: Did y ou, in f act, m ove f

or a $100,000 bond on the D ef endant in this case? Sledge: No. ¶28. T h i s C o u r t f

i n d s t h a t I n vestigator Sledge’s t estim ony was lim ited to re b u t t i n g W a lker’s testim ony and was not an im proper comm ent on W alker’s silence. 6 It is clear f rom the transcript that W alke r ’ s c o mments regarding his ref usal to give the police a statem ent

were generated by W alker, not by the State. See J ohnson v. State , 666 S o. 2 d 499, 503 (Miss. 1995) (“[ W ]here the State ‘initiate[ s] the m a tter by e liciting f rom the def

endant the response it l a t e r [ s eeks] t o im

peach by showing the def endant’s prior crim inal

. . . activities,’ the im p eachm ent is im

perm issible and cause f

or reversal and rem and.” (alterations in original) (quoting Quinn v. State , 4 79 So. 2d 7 06, 70 8 ( M i s s. 1 985))). W alker opened the door by voluntarily telling the jury of h is own volition that he h ad ref u sed to giv e the police a
statem ent. See Flem i

n g v . S t a t e , 6 04 So. 2d 280, 289 (Miss. 1992) ( “It is axiom atic that a def endant cannot com

p lain on ap p e a l concerning evidence that he him self brought out at trial.” ( citing Singleton v. State , 518 So. 2d 653, 655 (Miss. 1988))). Theref ore, we f ind that the State did not violate W alker’s due process rights or his right to a f a ir trial. CONCLUSION

6 O n reb u ttal, th e p ro secu to r ask ed In v estig ato r S led g e, “ [ d ] o y o u ev er f o rce in d iv idu als to g iv e y o u a statem en t? ” T h is qu estio n , to w h ich n o o b j ectio n w as m ad e, co u ld b e s e e n a s a b rid g e to o f ar b y th e p r o secu tio n i f n o t f o r th e d e f en d an t’s earlier attack o n In v estig ato r S led g e’s ch aracter. Walk er testif ied sp o n tan eo u sly th a t S l ed g e h ad th reaten ed h im w ith a $ 1 0 0 ,0 0 0 b o n d , w h ich co u ld c a u se a reaso n ab le j u ro r to q u estio n S led g e’s c h a r a c ter o r h is in t eg r ity

. T h eref o re, th e S t ate’s q u estio n so u g h t to resto re I n v estig ato r S led g e’s ch aracter as an eth ical p o lice o f f icer, w h i c h , u n d er th e c ircu m s t an ces, w as p erm i ssib le. 1 4¶29. This Court f inds that W alker’s suf

f iciency of the evidence claim

in regard to Count
II is procedurally barred. W e f ind also that W alker o pened the d oor f or I nvestigator Sledge’s testim o ny by telling the jury him self that h e had ref used to give a s t a t e me n t t o the police. Accordingly , this Court af f irm s W alker’s conviction and sentence. ¶30. AFFIRMED. RANDOLPH, C.J., KING, P.J., COLEMAN, MAX WELL, BE A M , CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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