Dustin Michael Gray a/k/a Dustin M. Gray v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: February 5, 2026
• Docket: 2023-KA-01270-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-KA-01270-COA

DUSTIN MICHAEL GRAY A/K/A DUSTIN M. APPELLANT GRAY

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/02/2023 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: STACY L. FERRARO JOSEPH SCOTT HEMLEBEN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 02/05/2026 MOTION FOR REHEARING FILED:

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. Dustin Gray was convicted of capital murder and sentenced to life imprisonment

without eligibility for parole for his role in the robbery and killing of his friend Willie Jones.

On appeal, Gray argues that the trial court erred by not suppressing his second statement to

law enforcement and other “derivative evidence that was the fruit of the poisonous tree,” i.e.,

his first statement to law enforcement, which the trial court had suppressed prior to trial.

Gray also argues that the trial court erred by denying his motion for a judgment notwithstanding the verdict (JNOV); that the trial court erred by giving a “flight instruction”

to the jury; that his right to an impartial jury was violated by the presence of two alternate

jurors, although both were dismissed prior to the beginning of deliberations; and that the trial

court erred by imposing an excessive fine and assessment.

¶2. The trial court did not clearly err by finding that Gray’s second statement was

voluntary or by denying his motion in limine to exclude other evidence. In addition, the

evidence was legally sufficient to sustain Gray’s conviction, so the trial court did not err by

denying his JNOV motion. Gray did not object to the “flight instruction,” so that issue is

procedurally barred on appeal. And the trial court committed no error, and Gray can show

no prejudice, related to either alternate juror. Therefore, we affirm Gray’s conviction.

However, the State offers no authority for the trial court’s imposition of a $10,000

assessment as partial reimbursement to the county for Gray’s court-appointed counsel.

Therefore, we reverse in part and render that assessment void. Gray’s sentence is affirmed

except for the “assessment.”

FACTS AND PROCEDURAL HISTORY

¶3. On the evening of July 5, 2020, Willie Jones, his cousin Dakeyvion, Dustin Gray, and

Gray’s brother Austin Brookshire were at Dakeyvion’s house in Picayune. Willie was

counting a “large sum of money” (“20s” and “100s”) in Gray’s presence. Willie sold drugs

and often had large amounts of cash, which he kept in a shoe box.1 Austin left the house

sometime that evening. Later, Gray and Willie left Dakeyvion’s house together. Gray was

1 Gray also sold drugs and was at Dakeyvion’s house to sell drugs.

2 supposed to give Willie a ride home. Willie was never seen alive again.

¶4. On July 6, Gray took his car to a detail shop. However, an employee of the shop,

Willie McCormick, refused to clean the car because he could see blood stains in the back seat

and shell casings in the front seat on the passenger side. Gray then offered McCormick “a

wad of money” to clean the car, but McCormick again refused. After McCormick refused

to clean the car, Austin called his (and Gray’s) brother Andrew Brookshire, who lived with

their sister Amber Brookshire. Austin asked Andrew if they could leave Gray’s car at

Amber’s house, and Andrew agreed. Gray and Austin told Andrew that they needed a new

back seat for the car, and Gray gave Andrew $500 to buy a new back seat.

¶5. On July 6, Willie’s relatives reported him missing and told police that Gray was the

last person seen with Willie. On July 7, Detective Rhonda Johnson of the Picayune Police

Department interviewed Gray at his house. Gray appeared nervous and denied that Willie

left Dakeyvion’s house with him. Gray stated that he had agreed to give Willie a ride home,

but Willie changed his mind and was still at Dakeyvion’s house when he (Gray) departed.

Gray stated that as he was leaving Dakeyvion’s house, another car drove up, but he did not

know who was in the car. Gray denied any knowledge about Willie’s disappearance.

¶6. On July 8, Johnson learned about Gray’s unsuccessful attempt to get his car cleaned

at the detail shop. McCormick identified Gray as the man who brought in the car and told

Johnson about the blood and shell casings. Johnson obtained a search warrant for Gray’s

house, and law enforcement found what they believed to be a stolen firearm. Law

enforcement then obtained an arrest warrant for Gray for possession of a stolen firearm.

3 However, Gray and his wife, Erica, had already fled the State.

¶7. On July 9, Gray’s sister Amber looked inside Gray’s car, which was still parked at her

house. Amber saw “a bullet hole in the back seat and blood” and immediately called 911.

Testing later confirmed the presence of blood on the back seat. Inside the car, law

enforcement also found shell casings, a projectile, and an earring like one Willie wore.

¶8. A few days later, Austin and Andrew met in Rankin County. Austin admitted that

Gray “told him to shoot [Willie], and he did.” Austin also told Andrew where and how he

and Gray had buried Willie’s body.

¶9. On July 15, Gray was arrested in Pueblo, Colorado, for possession of a stolen firearm.

Law enforcement found just under $18,000 in the car Gray had been driving.

¶10. Austin and Andrew met again after Gray was arrested. Austin “was worried.” He

gave Andrew approximately $16,000 and said “to get him a lawyer” if he (Austin) was

arrested. Andrew hid the money but later turned it over to law enforcement after he

(Andrew) was arrested.

¶11. On July 17, Detective Johnson interviewed Gray in Colorado. Gray waived his

Miranda2 rights and agreed to talk to Johnson. The interview was recorded. Gray eventually

confessed that Austin shot and killed Willie while Willie was in the back seat of Gray’s car.

Gray stated that Austin took Willie’s shoe box full of cash and promised to give Gray

$20,000 later. Gray also told Johnson how and where he and Austin buried Willie’s body.

Prior to trial, the trial court granted Gray’s motion to suppress his July 17 confession, so that

2 Miranda v. Arizona, 384 U.S. 436 (1966).

4 confession was not admitted into evidence at trial.

¶12. Detective Richard Gulledge of the Pearl River County Sheriff’s Department testified

that he interviewed Austin on July 19 and 20. Austin admitted that he and Gray had planned

to rob and kill Willie. Austin stated that he pulled the trigger and shot Willie at Gray’s

direction.3 Detective Johnson also testified she “was told” that Austin killed Willie in Gray’s

car while Gray was present.4 Austin also told Gulledge that he and Gray had purchased a

shovel and tarp at Lowe’s in Slidell, Louisiana, and used those items to bury Willie’s body

in Pearl River County. Austin stated that he and Gray discarded the shovels off Highway

607, and law enforcement found the shovels in the location Austin had described.

¶13. Gray waived extradition and was transported back to Mississippi. On August 2, Gray

again waived his Miranda rights and gave a statement to Detective Gulledge. Gray admitted

that Austin told him before Willie got in the car with them that he was going to shoot Willie

and rob him. Gray claimed that he did not plan or want to kill Willie, and “for [him], if

anything, it was a robbery, not a murder.” Gray admitted that he and Austin “obviously”

planned to rob Willie, but he also claimed that he “really did not want to rob [Willie].” Gray

stated that Willie left his shoe box full of money in Willie’s car at Dakeyvion’s house before

they left. After Austin shot Willie, Austin searched Willie’s pockets and took his keys. Gray

and Austin later drove back to Dakeyvion’s house and used Willie’s keys to retrieve Willie’s

3 The trial court ruled that Gray “open[ed] the door” to Gulledge’s testimony on redirect examination by cross-examining Gulledge about other parts of Austin’s statement. Gray does not challenge that ruling on appeal. 4 Gray elicited Johnson’s testimony on cross-examination, which she then clarified, without objection, on redirect examination.

5 money from Willie’s car. Gray and Austin then drove to Gray’s house, where they counted

and divided Willie’s money. Later, they went to bury Willie.

¶14. Consistent with Gray’s and Austin’s confessions and Austin’s statements to Andrew,

Willie’s body was recovered in a shallow grave in an isolated area on hunting club property

in Pearl River County. Gray admitted that he and Austin bought shovels and a tarp at the

Lowe’s in Slidell to use to dispose of Willie’s body. In addition, Andrew testified that

Austin told him about buying the shovels and tarp at Lowe’s. A Lowe’s surveillance video

of Austin and Gray buying those items was admitted into evidence at trial.

¶15. Dr. Mark LeVaughn performed the autopsy and determined that Willie died of

multiple gunshot wounds to the chest. Projectiles recovered from Willie’s body were

analyzed and compared to the projectile found in Gray’s car. Forensic scientist Lori Beall

testified that all three projectiles bore similarities in class characteristics with .223-caliber

ammunition, but because they were damaged and misshapen, they could not be positively

included or excluded as having been fired by the same gun. Evidence showed that Austin

purchased a Sig Sauer SIGM400 5.56mm rifle two months before Willie was killed. Beall

testified that it was possible to shoot .223-caliber ammunition through that type of rifle.

¶16. Gray and Austin were indicted for capital murder, and Erica and Andrew were

indicted for accessory after the fact to capital murder. Gray’s and Austin’s cases were later

severed, and they were tried separately.5

5 Austin was convicted of first-degree murder. This Court recently affirmed his conviction on direct appeal. Brookshire v. State, No. 2023-KA-00966-COA, 2025 WL 2601213 (Miss. Ct. App. Sept. 9, 2025) (motion for rehearing denied January 20, 2026).

6 ¶17. Prior to trial, Gray filed a motion to suppress his July 17, 2020 statement to Detective

Johnson (the Colorado confession). Gray also sought to suppress his August 2, 2020

statement to Detective Gulledge (the Mississippi confession), as well as Austin’s and

Andrew’s statements to law enforcement, the video recordings from the Lowe’s in Slidell,

all evidence related to the discovery of Willie’s body, and other “derivative evidence.”

Following a pretrial suppression hearing, the trial court granted Gray’s motion to suppress

his Colorado confession; however, the trial court’s ruling did not address Gray’s Mississippi

confession or any other evidence. Gray subsequently filed a motion in limine in which he

again sought to exclude the Mississippi confession and other “derivative evidence,” arguing

that the Mississippi confession was predicated on information obtained during his Colorado

confession and that other evidence was “fruit” of the unlawfully obtained Colorado

confession. The trial court denied Gray’s motion in limine, finding that the Mississippi

confession was voluntary and not tainted by the Colorado confession and that other evidence

would have been discovered by law enforcement regardless of the Colorado confession.

¶18. In August 2023, a four-day jury trial was held. The State’s theory of the case was that

Gray and Austin had planned to rob Willie, and Austin shot Willie in Gray’s car while Gray

was driving. Andrew testified, without objection, that Austin stated that Gray had instructed

him in a text message to kill Willie. However, law enforcement never recovered Gray’s and

Austin’s phones because the phones had been discarded, and law enforcement could not

access the data on their iCloud accounts. The jury found Gray guilty of capital murder, and

the court sentenced him to life imprisonment in the custody of the Department of Corrections

7 without eligibility for parole. Gray filed a motion for JNOV or a new trial, which was

denied, and a notice of appeal.

¶19. On appeal, Gray argues (1) that the trial court erred by not suppressing his Mississippi

confession and other “derivative evidence that was the fruit of the poisonous tree,” i.e., his

Colorado confession; (2) that the trial court erred by denying his motion for JNOV; (3) that

the trial court erred by giving a “flight instruction”; (4) that his right to an impartial jury was

violated; and (5) that the trial court erred by imposing an excessive fine and assessment.

ANALYSIS

I. The trial court did not err by admitting Gray’s Mississippi confession or other inculpatory evidence.

A. The trial court did not err by admitting the Mississippi confession.

¶20. The trial court suppressed Gray’s July 17, 2020 statement to Detective Rhonda

Johnson (the Colorado confession) on two grounds: (1) because Johnson did not “seek

clarification” of Gray’s supposed “ambiguous request for counsel” and (2) because it was the

product of “coercive tactics” by Johnson and “was not voluntary.” Although Gray’s

Colorado confession was suppressed and is not directly at issue in this appeal, it is important

to understand the grounds on which it was suppressed because that impacts our analysis of

Gray’s arguments that his August 2, 2020 statement to Detective Richard Gulledge (the

Mississippi confession) should have been suppressed as well.

¶21. The trial court clearly misapplied the law when ruling that the Colorado confession

was inadmissible because Johnson did not “seek clarification” of Gray’s supposed

8 “ambiguous request for counsel.” The trial court cited Holland v. State, 587 So. 2d 848, 856

(Miss. 1991), and Downey v. State, 144 So. 3d 146, 150-52 (¶¶7-13) (Miss. 2014), for the

proposition that when a suspect makes an ambiguous request for counsel, the interrogation

must cease except for questions intended to clarify the ambiguous request. However, the

Mississippi Supreme Court has overruled Holland and Downey to the extent they required

an officer to seek clarification of an ambiguous request for counsel. Saddler v. State, 297

So. 3d 234, 239 (¶13) (Miss. 2020). In a series of cases, the Court has “held that Mississippi

does not require the officer to ask clarifying questions after ambiguous utterances” and “that

such clarifying questions are not required.” Id. (emphasis added). Rather, unless the suspect

makes “an unambiguous, unequivocal request for an attorney,” “the officer ha[s] no

obligation to stop questioning [him].” Id. (emphasis added) (brackets omitted). Mere

“ambiguous” statements are insufficient to invoke a suspect’s right to counsel. Here, the trial

court clearly misstated the law by holding that Gray’s “ambiguous” comments triggered his

right to counsel or required “clarifying” questions. Moreover, the record clearly shows that

Gray never unambiguously requested a lawyer during the Colorado interview.6 Therefore,

the trial court clearly erred by suppressing Gray’s Colorado confession on this ground.

6 To the contrary, Gray stated at one point that he was “think[ing] of a lawyer.” Later, he stated, “My dad is a lawyer, and I’ve seen these things happen. People get f***ed without a lawyer. If a lawyer is sitting right here and we come up with an agreement, that’s one thing.” Detective Johnson immediately interjected, “I mean, you signed the paper saying you would talk without a lawyer. What are you saying now?” Gray then stated, “Yes, I am, I’m talking to you.” Johnson stated, “Okay, I was just making sure that you didn’t change your mind.” Gray stated, “No, no, I’m still talking.” Thus, Johnson actually did clarify Gray’s ambiguous comments, and Gray made clear that he did want to continue talking.

9 ¶22. On appeal, the State does not challenge the trial court’s alternative finding that Gray’s

Colorado confession was coerced and “not voluntary.” Therefore, we accept that finding for

purposes of this appeal. But it does not follow that Gray’s subsequent Mississippi confession

should have been suppressed as well. The United States Supreme Court has explained that

after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.

United States v. Bayer, 331 U.S. 532, 540-41 (1947) (emphasis added). “The admissibility

of the later confession depends upon the same test [as the former]—is it voluntary.” Lyons

v. Oklahoma, 322 U.S. 596, 603 (1944). “When a prior statement is actually coerced, [1] the

time that passes between confessions, [2] the change in place of interrogations, and [3] the

change in identity of the interrogators all bear on whether that coercion has carried over into

the second confession.” Oregon v. Elstad, 470 U.S. 298, 310 (1985).

¶23. Here, sixteen days passed between the Colorado confession and the Mississippi

confession. In addition, the latter confession was made in an entirely different “place” than

the former—after Gray had waived extradition and returned to Mississippi. Finally, there

was a “change in the identity of the interrogators.” Prior to the Mississippi confession,

Detective Gulledge thoroughly advised Gray of his Miranda rights, and Gray voluntarily

waived his rights and agreed to talk to Gulledge. Moreover, as the trial court found,

“Gulledge did not use coercive tactics or improperly induce statements from Gray” during

10 the Mississippi interview. Under these circumstances, the trial court found that the

Mississippi confession was voluntary and admissible.

¶24. The trial court’s finding is consistent with Keller v. State, 138 So. 3d 817 (Miss.

2014), in which the Mississippi Supreme Court affirmed the trial court’s finding that the

defendant’s third confession was voluntary and admissible even though it followed two

involuntary and inadmissible confessions. Id. at 852 (¶¶80-82). In Keller, the defendant

sustained a gunshot wound and was taken to the emergency room following his arrest. Id.

at 847 (¶63). The trial court held that the defendant’s first two confessions were involuntary

and inadmissible because he was questioned while still receiving treatment in the emergency

room, and he was disoriented and in a great deal of pain and distress. Id. at (¶64). However,

the following afternoon (fourteen hours later), the defendant waived his Miranda rights and

agreed to talk to the same officer who had conducted the second interview. Id. at 847-48,

852 (¶¶65, 81). The trial court found that the third interview was conducted “away from the

chaos of the emergency room,” the defendant “gave no indication of [any] pain or distress,”

the officer did not employ any coercive tactics, and the defendant gave a detailed confession.

Id. at 852 (¶81). Under those circumstances, the trial court found that the defendant’s third

confession was voluntary and admissible even though it followed two prior involuntary

confessions. Id. The Supreme Court affirmed, holding that the trial court applied the correct

legal standard and that its findings of fact were not clearly erroneous. Id. at (¶82).

¶25. Likewise, in the present case, we cannot say that the trial court clearly erred by finding

that Gray’s second confession was voluntary and admissible. See, e.g., Alexander v. State,

11 610 So. 2d 320, 326 (Miss. 1992) (holding that the trial court’s finding that a confession was

voluntary will not be reversed unless it is clearly erroneous). Therefore, the trial court did

not err by denying Gray’s motion to suppress the Mississippi confession.

¶26. In the alternative, for the sake of completeness, we would also hold that any error in

the admission of the Mississippi confession was harmless in light of the overwhelming

evidence of Gray’s guilt. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (holding that

the erroneous admission of a confession is subject to harmless-error analysis).

¶27. Gray was the last person seen with Willie. The day after Willie disappeared, Gray

took his car to a detail shop in an effort to clean up the evidence of the crime, but the detail

shop employee rebuffed Gray and the “wad of money” he offered. Gray then took the car

to his sister’s house, but a few days later his sister saw a bullet hole and blood in the back

seat of the car and immediately called 911. In addition to confirming the presence of blood,

law enforcement recovered shell casings, a projectile, and an earring like one that Willie

wore from the car. After Gray fled to Colorado, his brothers Austin and Andrew made

statements to police implicating him in the robbery and murder. Law enforcement also

recovered large sums of cash from Andrew and Gray. Surveillance video showed Austin and

Gray buying shovels and a tarp to bury Willie’s body, and Willie’s body was recovered in a

shallow grave in rural Pearl River County. The Lowe’s surveillance video and the location

of the body were consistent with Austin’s and Andrew’s statements to police. The

characteristics of the projectiles recovered from Willie’s body were consistent with having

been fired from a rifle that Austin purchased two months before the murder.

12 ¶28. In light of all the evidence against Gray, any error in the admission of his Mississippi

confession was harmless beyond a reasonable doubt. See Fulminante, 499 U.S. at 310

(“When reviewing the erroneous admission of an involuntary confession, the appellate court,

as it does with the admission of other forms of improperly admitted evidence, simply reviews

the remainder of the evidence against the defendant to determine whether the admission of

the confession was harmless beyond a reasonable doubt.”). Indeed, this Court recently held

that the trial court erred by denying Austin’s motion to suppress his confession prior to his

separate trial, but we also held that the error was “harmless” “[i]n light of the overwhelming

evidence against [Austin].” Brookshire, 2025 WL 2601213, at *5 (¶22). Accordingly, this

Court unanimously affirmed Austin’s murder conviction.7 The evidence against Gray was

no less “overwhelming” than the evidence against Austin.8 Therefore, even if we concluded

that Gray’s Mississippi confession was admitted in error, we would hold that the error was

harmless. See State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss. 1991) (“[L]ike

cases ought to be decided alike.”).

B. The trial court did not err by admitting any other alleged “derivative evidence.”

¶29. In addition, the trial court did not err by denying Gray’s motion to suppress other

evidence obtained during the course of the investigation. This evidence includes Austin’s

7 Presiding Judge Carlton and Judge McCarty concurred in result only without separate written opinion. 8 The evidence in both trials showed that Austin was the shooter. However, “[t]o find [Gray] guilty of capital murder, the jury did not need to find he was the shooter.” Dampier v. State, 973 So. 2d 221, 231 (¶28) (Miss. 2008). “Thus, it is largely irrelevant who did the shooting.” Randall v. State, 716 So. 2d 584, 590 (¶32) (Miss. 1998).

13 and Andrew’s statements to law enforcement, information regarding Austin’s purchase of

the murder weapon, evidence from Lowe’s in Slidell, evidence from Highway 607, and

evidence related to the discovery of Willie’s body.

¶30. As stated above, the trial court found that Gray’s Colorado confession “was not

voluntary due to several statements law enforcement made during the interrogation which

were, individually and/or cumulatively, coercive in inducing Gray’s eventual statement.” It

is well-settled that “an involuntary confession [is] inadmissible for any purpose whatsoever.”

Booker v. State, 326 So. 2d 791, 793 (Miss. 1976). Therefore, the trial court’s finding

(unchallenged on appeal) required the exclusion of Gray’s Colorado confession. In addition,

precedent “requires the exclusion of the physical fruit of actually coerced statements.”

United States v. Patane, 542 U.S. 630, 644 (2004) (plurality opinion).9 “However, all

evidence obtained by virtue of illegal actions of the police is not ‘fruit of the poisonous

tree.’” Hooker v. State, 716 So. 2d 1104, 1112 (¶28) (Miss. 1998) (emphasis added). “[T]he

derivative evidence analysis ensures that the prosecution is not put in a worse position simply

because of some earlier police error or misconduct.” Nix v. Williams, 467 U.S. 431, 443

(1984). Therefore, any “evidence that has been discovered by means wholly independent of

any constitutional violation” remains admissible. Id. In addition, evidence is admissible

despite the constitutional violation “[i]f the prosecution can establish by a preponderance of

the evidence that the information ultimately or inevitably would have been discovered by

lawful means.” Id. at 444.

9 In contrast, the physical fruits of an “unwarned” but otherwise voluntary statement need not be suppressed. Id. at 634.

14 ¶31. In its order denying Gray’s motion in limine, the trial court emphasized that even

before Gray’s Colorado confession, law enforcement already had identified Austin and

Andrew as suspects and had discovered Gray’s car, the incriminating evidence in the car, and

Gray’s efforts to destroy that evidence. Austin and Andrew later gave statements that

pointed law enforcement to the same evidence that Gray disclosed in his Colorado

confession. Therefore, the trial court found that the evidence inevitably would have been

discovered even without Gray’s Colorado confession. We cannot say that the trial court

clearly erred by finding that the additional evidence Gray sought to suppress would have

been discovered inevitably even without Gray’s Colorado confession. Accordingly, the trial

court did not err by denying Gray’s motion in limine.

II. The trial court did not err by denying Gray’s motion for judgment notwithstanding the verdict.

¶32. We review the denial of a JNOV motion de novo. Sanford v. State, 247 So. 3d 1242,

1244 (¶10) (Miss. 2018). “We view the evidence in the light most favorable to the

prosecution to determine whether rational, reasonable fair-minded jurors could have found

that the State proved each essential element of the crime.” Poole v. State, 46 So. 3d 290, 293

(¶20) (Miss. 2010) (quotation marks and emphasis omitted). “[A]ll credible evidence

supporting a defendant’s guilt should be accepted as true, and all favorable inferences drawn

from the evidence must be reconciled in the prosecution’s favor.” Johnson v. State, 904 So.

2d 162, 166 (¶7) (Miss. 2005). “We are not required to decide—and in fact we must refrain

from deciding—whether we think the State proved the elements.” Poole, 46 So. 3d at 293-94

(¶20). “Rather, we must affirm the conviction as long as there is sufficient evidence for a

15 rational juror to find that the State proved all elements of the offense.” Williamson v. State,

375 So. 3d 1158, 1167 (¶19) (Miss. Ct. App. 2023) (citing Poole, 46 So. 3d at 293-94 (¶20)).

¶33. To convict Gray of capital murder, the State was required to prove beyond a

reasonable doubt that Willie was killed “without authority of law” and “with or without any

design to effect death, by any person engaged in the commission of the crime of . . . robbery.”

Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2020). To find Gray guilty of capital murder, the jury

was not required to find that Gray shot Willie or contemplated that Willie would be killed,

but only that he aided and abetted Austin in the robbery. Dampier, 973 So. 2d at 231 (¶28).10

In addition, “Mississippi follows the ‘one-continuous-transaction’ rule for determining

whether the evidence establishes the requisite nexus between the killing and the underlying

felony to constitute capital murder.” Beasley v. State, 362 So. 3d 112, 122 (¶33) (Miss. Ct.

App. 2023) (quoting Gillett v. State, 56 So. 3d 469, 492 (¶50) (Miss. 2010)). The Mississippi

Supreme Court has explained that

[w]here the two crimes [e.g., murder and robbery] are connected in a chain of events and occur as part of the res gestae, the crime of capital murder is sustained. Regarding the underlying felony of robbery, if the intervening time between the time of the murder and the time of taking of the property formed a continuous chain of events, the fact that the victim was dead when he took the property cannot absolve the defendant from the crime of robbery. The State need not prove the defendant had the intent to rob prior to the killing. Rather, the State has the burden to prove that the two crimes are connected in a chain of events and occur as part of the res gestae.

10 “While it is true that a defendant involved in an armed robbery in which a killing occurs but who did not do the actual killing must have at least contemplated the use of lethal force before the death penalty may be imposed, no such contemplation or intent is required to be found in the guilt phase of the trial.” Ballenger v. State, 667 So. 2d 1242, 1254 (Miss. 1995).

16 Batiste v. State, 121 So. 3d 808, 831-32 (¶33) (Miss. 2013) (citations, brackets, and quotation

marks omitted).

¶34. Robbery is the taking of personal property from the victim’s “presence or . . . person

. . . against his will, by violence to his person or by putting [him] in fear of some immediate

injury to his person.” Miss. Code Ann. § 97-3-73 (Rev. 2020). “[T]he phrase ‘from the

presence’ or ‘in the presence’ has been construed in a number of cases.” Reynolds v. State,

227 So. 3d 428, 437 (¶35) (Miss. Ct. App. 2017) (quoting Towner v. State, 812 So. 2d 1109,

1113 (¶19) (Miss. Ct. App. 2002)). “‘Presence’ in this connection is not so much a matter

of eyesight as it is one of proximity and control: the property taken in the robbery must be

close enough to the victim and sufficiently under his control that, had the latter not been

subjected to violence or intimidation by the robber, he could have prevented the taking.” Id.

(quoting Towner, 812 So. 2d at 1113 (¶19)).

¶35. Here, prior to the murder, Gray and others observed Willie counting a large amount

of cash. In Colorado, $18,000 was found in the console and trunk of the car Gray was

driving. In addition, Andrew testified that a few days after Gray was arrested, Austin gave

him $16,000 to hide. Austin told Andrew that the money came from Willie.

¶36. Gray argues the State did not prove robbery and only proved, at most, that Austin and

Gray took the money out of Willie’s car after they had already killed Willie in Gray’s car.

However, the evidence contradicts this claim, showing both Gray and Austin intended to rob

Willie before they killed him. Moreover, according to Gray’s own confession, Austin shot

Willie and then searched Willie’s pockets and took his keys from his person. Austin then

17 used those keys to open Willie’s car and take his money.

¶37. We must view the evidence in the light most favorable to the prosecution, and we

must affirm the conviction if a rational juror could have found that the State proved each

essential element of the offense beyond a reasonable doubt. Poole, 46 So. 3d at 293 (¶20).

Applying the one-continuous-transaction rule, there was sufficient evidence for a rational

juror to find beyond a reasonable doubt that Willie was killed as part of the same continuous

chain of events as the robbery. “[T]he jury properly was instructed on the one-continuous-

transaction rule” and “was able to determine whether the killing and the robbery had occurred

as part of a continuous chain of events.” Batiste, 121 So. 3d at 833 (¶35). Accordingly, the

trial court did not err by denying Gray’s motion for JNOV.

III. Gray waived any objection to the jury instruction regarding flight.

¶38. Gray next argues that the trial court erred by giving a jury instruction regarding his

“flight” to Colorado following Willie’s murder. “However, [Gray] failed to object to the jury

instruction offered by the State at trial. [The Mississippi Supreme] Court has held on

numerous occasions that an offended party’s failure to object to jury instructions at trial

procedurally bars the issue on appeal.” Jones v. State, 776 So. 2d 643, 653 (¶35) (Miss.

2000). Therefore, the issue is procedurally barred.

IV. Gray’s right to an impartial jury was not violated.

A. Juror Mendoza

¶39. Prior to opening statements, one of the alternate jurors, juror Mendoza, told the court

that she “came back from lunch . . . not feeling good” and “very nervous” and wanted “to be

18 excused” because she did not think she could “make it through the trial.” The court asked

Mendoza if she would “at least try to stay through the opening” statements but that he would

“excuse” her if she still felt the same following opening statements. Mendoza agreed.

Following opening statements, Mendoza informed the court that she could not make it

through trial and needed to be excused. The court excused Mendoza, stating that she was

“having anxiety attacks” and could not “take it.” The court informed the remaining jurors

that Mendoza had been excused because of “material issues that she had to leave for.” The

defense did not object to the dismissal of the alternate juror or move for a mistrial. Indeed,

defense counsel agreed that it was appropriate to dismiss Mendoza.

¶40. On appeal, Gray argues that Mendoza’s dismissal or the circumstances of it somehow

prejudiced him, asserting, without elaboration, that Mendoza’s “fear” “was likely observed

by the jury and created bias.” He asserts that the other jurors should have been “questioned

about Juror Mendoza’s departure.” However, Gray waived the issue by failing to object,

move for a mistrial, or request any other action by the trial court. Cf. Smith v. State, 729 So.

2d 1191, 1200 (¶32) (Miss. 1998) (holding that the defendant waived any objection to the

dismissal of a prospective juror because “he did not object when the trial court actually

dismissed her”). Moreover, we fail to see how Mendoza’s dismissal prejudiced Gray in any

way. Accordingly, this issue is without merit.

B. Juror Burge

¶41. Five weeks after the trial, Gray filed a “Motion for Mistrial” in which he alleged that

the other alternate juror, Adriona Burge, had failed to disclose her prior knowledge of the

19 case during voir dire. Notably, Burge had been excused prior to the beginning of the jury’s

deliberations because no alternate juror was needed. In Gray’s post-trial motion, he alleged:

Upon information and belief, Adriona Burge . . . was married to Randolph Burge, and they were co-owners of a mortuary transport business. . . . [After Willie’s body was discovered, the county] coroner called Randolph Burge to come and transport [Willie’s] body . . . to [Randolph Burge’s] cold storage facility that was located in a shed behind [the Burges’] home . . . . Adriona Burge was at her house when the body arrived. Pearl River County deputies escorted the transport of Willie’s body, and were at the home of Adriona Burge when the body was transported to the cold storage facility behind her house. She saw the body and spoke with the Pearl River County deputies who were escorting the transport.

Gray asserted that Randolph Burge had informed Gray’s father of this information sometime

“after the jury verdict was made public.” Gray did not provide an affidavit from Adriona

Burge or anyone else or any other evidence to corroborate his allegation.

¶42. Gray asserted that Adriona Burge should have responded during voir dire when

defense counsel asked, “I need to know if any of you have any kind of job that would -- that

might affect your ability to serve as a juror in this case. For example, if you work in the law

enforcement or medical field or funeral home. Any of those type of occupations?”

(Emphasis added). Another juror stated, “I work at a funeral home, but it will not affect

this.” Defense counsel accepted the juror’s answer without further questioning. Later,

defense counsel asked, “What about any of your family or close friends? Anybody have a

spouse or a child or significant other that is law enforcement that deals with these type of

cases or things every day?” (Emphasis added). When defense counsel asked if any

prospective juror “ha[d] any prior knowledge about this particular case,” Adriona Burge

stated that she had heard about the case on “social media.” Defense counsel asked whether

20 any of the prospective jurors had “personally” gotten “involved with the online discussion”

about the case or made “any posts or comments” about the case. No prospective jurors

responded. Burge was ultimately selected as an alternate juror and then excused prior to the

beginning of deliberations. The trial court denied Gray’s post-trial motion for a mistrial.

¶43. In Odom v. State, 355 So. 2d 1381 (Miss. 1978), our Supreme Court noted that a

prospective juror’s “failure . . . to respond to a relevant, direct, and unambiguous question

leaves the examining attorney uninformed and unable to ask any follow-up questions to elicit

the necessary facts to intelligently reach a decision to exercise a peremptory challenge or to

challenge a juror for cause.” Id. at 1383. Therefore, the Court held that if

a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court's determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. It is, of course, a judicial question as to whether a jury is fair and impartial and the court’s judgment will not be disturbed unless it appears clearly that it is wrong.

Id. (footnote omitted).

¶44. Here, the record does not show that Burge failed to disclose any pertinent information

in response to any relevant, direct, and unambiguous question. There is no evidence that

Burge personally “work[ed] in” a “funeral home” or any other occupation that might have

affected her ability to serve as a juror in the case. Gray alleges that Burge and her husband

21 co-owned a mortuary transport business, but there is no allegation that Burge personally

worked in the business. Moreover, when another prospective juror indicated that he actually

worked in a funeral home, defense counsel had no further questions for him. Finally, there

is no evidence that Burge had any knowledge about the case or even knew her husband had

transported the body. That is, there is no evidence that Burge “had substantial knowledge

of the information sought to be elicited.” Id. Therefore, we certainly cannot say that the trial

court’s denial of Gray’s post-trial motion for a mistrial was “clearly . . . wrong.” Id.

¶45. We also note that as an alternate juror, Burge was excused before deliberations began.

The trial court instructed the jury at the outset of the trial not to discuss the case with anyone

during the trial, not even among themselves. The court then repeatedly reminded the jury of

that instruction throughout the trial. “Generally speaking, our law presumes that jurors

follow the trial judge’s instructions, as upon their oaths they are obliged to do.” Young v.

Guild, 7 So. 3d 251, 263 (¶39) (Miss. 2009).

¶46. In Ables v. State, 850 So. 2d 172 (Miss. Ct. App. 2003), the trial court discovered mid-

trial that a juror had failed to disclose that she had significant knowledge about the case even

though during voir dire “the trial court and counsel thoroughly questioned the venire about

their knowledge of the case and the parties.” Id. at 175 (¶10). Indeed, when questioned in

chambers, the juror admitted that she knew the victim and his brother, that she lived on the

street where the murder took place, that she saw the defendant driving up and down the street

prior to the murder, that she heard the fatal gunshot, and that her “daughter picked up [the

victim] and held him” after he was shot. Id. at (¶11). However, the juror stated—consistent

22 with the court’s instructions—that she had not discussed the case or shared her knowledge

with the other jurors. The trial court dismissed the juror and substituted an alternate, but the

court denied the defendant’s motion for a mistrial. Id. at (¶12). “[T]he trial court found that

the jury panel was untainted because [the dismissed juror] stated that she never discussed the

case with other jurors,” and she was dismissed prior to jury deliberations. Id. at 176 (¶15).

On appeal, this Court affirmed. Id. at (¶16). We reasoned:

[The juror’s] misconduct came to light prior to deliberations, at a time when the jurors had been instructed to refrain from discussing the case amongst themselves. . . . Certainly, [the juror’s] concealment was particularly egregious and, had it been discovered after deliberations, would have warranted a new trial. However, deliberations had not yet begun, and there was no showing that [the juror] ever discussed the case with other jurors. The trial court was not clearly wrong in finding that the jury could be fair and impartial notwithstanding [the juror’s] misconduct.

Id. (citation omitted).

¶47. Likewise, Burge was dismissed in this case “prior to deliberations, at a time when the

jurors had been instructed to refrain from discussing the case amongst themselves.” Id. As

discussed above, there is no evidence that Burge concealed anything or engaged in any

“misconduct.” But in any event, as in Ables, “deliberations had not yet begun, and there was

no showing that [Burge] ever discussed the case with other jurors.” Id. Therefore, as in

Ables, the trial court’s denial of Gray’s post-trial motion “was not clearly wrong.” Id.

¶48. In summary, Gray waived any objection related to juror Mendoza, there is no evidence

in the record that juror Burge withheld any information that should have been disclosed voir

dire, and there is no evidence that the presence of either alternate juror prior to deliberations

prejudiced Gray in any manner. Accordingly, the trial court did not err by denying Gray’s

23 post-trial motion for a mistrial.

V. The fine imposed by the trial court is authorized by statute and not excessive; however, the assessment is reversed and rendered.

¶49. The trial court sentenced Gray to life imprisonment in the custody of the Department

of Corrections without eligibility for parole as required by Mississippi Code Annotated

section 97-3-21(b) (Rev. 2020) and also ordered him to pay a $5,000.00 fine and “an

assessment of $10,000.00 to the Public Defender fund.”

¶50. Mississippi Code Annotated section 99-19-32 (Rev. 2020) provides:

Offenses punishable by imprisonment in the State Penitentiary for more than one (1) year and for which no fine is provided elsewhere by statute may be punishable by a fine not in excess of Ten Thousand Dollars ($10,000.00). Such fine, if imposed, may be in addition to imprisonment or any other punishment or penalty authorized by law.

No other statute provides for a specific fine for capital murder. Therefore, it was within the

trial court’s discretion to impose a fine of up to $10,000, and the court did not abuse its

discretion by imposing a fine ($5,000) that was well within the statutory limits. See Conley

v. State, 790 So. 2d 773, 805-06 (¶¶129-32) (Miss. 2001).

¶51. Nonetheless, Gray argues that the trial court exceeded its authority because the

combined amount of the $5,000 fine and $10,000 assessment ($15,000) exceeds the

maximum fine allowed by the statute. In response, the State argues that the assessment is

separately authorized by Mississippi Code Annotated section 99-19-73(7) (Rev. 2020). That

statute provides that in addition to any other fines, a trial court “shall . . . impose[] and

collect[] the following state assessment from each person upon whom [the] court imposes

a fine or other penalty for any felony” (other than certain offenses addressed elsewhere in the

24 statute). Id. The statute provides for a “state assessment” payable to the “GENERAL

FUND” in the amount of “$280.50.” Id. The statute also lists twenty-one other special funds

with assessment amounts that are all shown as “[Deleted].” Id. One of these special

funds—cited by the State on appeal—is the “Public Defenders Education Fund,” with an

assessment amount shown as “[Deleted].” Id. The State argues that the statute “does not

provide a maximum assessment” for the “Public Defenders Education Fund”—because the

“AMOUNT” is shown as “[Deleted].” Therefore, the State argues that the trial court’s

$10,000 assessment “did not exceed that allowed by statute.”

¶52. The State’s argument misunderstands both the trial court’s assessment and the state

assessment statute. First, the trial court’s assessment was not payable to the state “Public

Defenders Education Fund” established in Mississippi Code Annotated section 99-40-1(4)(b)

(Rev. 2020) and referenced in the state assessment statute. Rather, the trial court ordered

Gray to pay $10,000 to the county’s “Public Defender Fund” as partial reimbursement to the

county for the cost of his court-appointed attorney.

¶53. Second, section 99-19-73(7) does not provide trial courts with uncapped authority to

order defendants to pay assessments to the “Public Defenders Education Fund” or any of the

other special funds listed in the statute. Prior to 2016, the statute provided specific amounts

payable to each of the listed special funds—e.g., “$1.00” from each state assessment was

payable to the “Public Defenders Education Fund.” Miss. Code Ann. § 99-19-73(7) (Rev.

2015). The sum of those amounts resulted in a “TOTAL STATE ASSESSMENT” of

“$280.50”—just as today. Id. However, in 2016, the Legislature amended the statute to

25 delete the amounts payable to all the listed special funds and to provide that the entire state

assessment of $280.50 would be payable to the general fund. See 2016 Miss. Laws ch. 459,

§ 71 (S.B. 2362); 2016 Miss. Laws 2016 ch. 509, § 1 (H.B. 298). This was part of an effort

to promote budget transparency by limiting the use of special funds. The 2016 amendments

left unchanged the total “state assessment” that the trial court “shall . . . impose[] and

collect[].” Miss. Code Ann. § 99-19-73(7) (Supp. 2016). The state assessment remained

$280.50. Id. The Legislature simply provided that the entire assessment would be paid into

the General Fund rather than being paid in varying amounts into twenty-one different special

funds. Again, the Legislature did not grant trial courts uncapped authority to order additional

assessments payable into the various state special funds.

¶54. Accordingly, section 99-19-73(7) clearly does not authorize the trial court’s order that

Gray pay a $10,000 “assessment” to the county “Public Defender Fund.” Moreover, the State

cites no other authority for such an assessment. Notably, in 2008, then-Circuit Judge Robert

P. Chamberlin asked the Attorney General whether a court could “impose an assessment at

the end of the case (along with fines, costs and restitution) to go to the county to help defray

the costs of a public defender.” Miss. Att’y Gen. Op., 2008-00173, 2008 WL 2357988,

Chamberlin, at *1 (May 23, 2008). In response, the Attorney General opined that “[t]here

is no authority for the imposition of an assessment against an indigent as described in this

question. However, it is the opinion of this office that the court may impose such an

assessment against non-indigents.” Id. at *2 (emphasis added).11 Here, Gray was found to

11 “Attorney General opinions are not binding, but they certainly are useful in offering guidance to the Court.” Jones Cnty. Sch. Dist. v. Dep’t of Revenue, 111 So. 3d 588, 602

26 be indigent and was represented at trial by the county public defender’s office and additional

court-appointed counsel. There was no evidence or finding by the trial court that Gray’s

financial condition had improved or that he was no longer indigent by the time of sentencing.

Consistent with the 2008 Attorney General’s opinion, we are not aware of any “authority for

the imposition of an assessment against an indigent” defendant to defray the cost of a public

defender or court-appointed counsel. Id. Certainly, the State has cited no such authority in

this appeal. In the absence of any authority for the $10,000 assessment, we reverse and

render the assessment void. The remainder of Gray’s sentence is affirmed.

CONCLUSION

¶55. Gray’s conviction is affirmed. Gray’s sentence is also affirmed except for the

“assessment of $10,000.00 to the Public Defender fund.” That assessment is reversed and

rendered void.

¶56. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

CARLTON, P.J., LAWRENCE, EMFINGER AND WEDDLE, JJ., CONCUR. BARNES, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, McDONALD, McCARTY AND LASSITTER ST. PÉ, JJ.

BARNES, C.J., DISSENTING:

¶57. I respectfully dissent from the lead opinion’s decision to affirm Gray’s conviction and

sentence. I would hold that the trial court’s failure to suppress Gray’s interrogation by

Detective Gulledge was reversible error; therefore, I would reverse and remand for a new

trial.

(¶55) (Miss. 2013).

27 ¶58. Gray’s responses during Detective Gulledge’s interrogation on August 2 were fruits

of the poisonous tree of the suppressed July 17, 2020 interrogation with Detective Johnson.

The trial court erred in not suppressing the August 2, 2020 confession.12

¶59. “The ‘fruit of the poisonous tree’ doctrine” is part of “the exclusionary rule[, which]

‘prohibits introduction into evidence of tangible materials’” that were unlawfully obtained

as well as “testimony concerning knowledge acquired during an unlawful search.” Green

v. State, 344 So. 3d 854, 857 (¶12) (Miss. 2022) (quoting Marshall v. State, 584 So. 2d 437,

438 (Miss. 1991); Murray v. United States, 487 U.S. 533, 536 (1988)). The doctrine

precludes “the introduction of derivative evidence, both tangible and testimonial, that is, the

product of the primary evidence, or that is otherwise acquired as a result of the unlawful

[obtaining of evidence], up to the point at which the connection becomes ‘so attenuated as

to dissipate the taint.’” Id. (quoting Murray, 487 U.S. at 536-37) (citing Wong Sun v. United

States, 371 U.S. 471, 486 (1963)).

¶60. “The exclusionary prohibition against ‘fruit of the poisonous tree’ applies to violations

of the Fifth-Amendment privilege against self-incrimination.” Chamberlin v. State, 989 So.

2d 320, 336 (¶54) (Miss. 2008) (quoting Brown v. Illinois, 422 U.S. 590, 599 (1975)).

However, “all evidence obtained by virtue of illegal actions of the police is not ‘fruit of the

poisonous tree.’ The test is ‘whether granting establishment of the primary illegality, the

evidence to which instant objection is made has been come at by exploitation of that illegality

instead of by means sufficiently distinguishable to be purged of the primary taint.’” Fraise

12 I concur with the lead opinion’s determination that the other derivative evidence was admissible under the inevitable discovery or the independent source doctrines.

28 v. State, 17 So. 3d 160, 164 (¶10) (Miss. Ct. App. 2009) (citations omitted).

¶61. The United States Supreme Court has created two exceptions to the fruit-of-the-

poisonous-tree doctrine: the inevitable discovery exception and the independent source

exception. Marshall, 584 So. 2d at 438 (citing Nix v. Williams, 467 U.S. 431, 443-44 (1984);

Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)). Under the inevitable

discovery doctrine, unlawfully obtained evidence “will be admissible if it can be shown that

this evidence would have ultimately been discovered by constitutionally permissible means.”

Pugh v. State, 101 So. 3d 682, 689 (¶29) (Miss. Ct. App. 2012) (citing Nix, 467 U.S. at 444).

“In order for the evidence to be admitted, the State must prove the following: ‘(1) a

reasonable probability that the evidence in question would have been discovered by lawful

means but for the police misconduct, (2) that the leads making the discovery inevitable were

possessed by the police at the time of the misconduct, and (3) that the police also prior to the

misconduct were actively pursuing the alternate line of investigation.’” Id. (quoting United

States v. Cherry, 759 F. 2d 1196, 1204 (5th Cir. 1985)). “The independent source doctrine

allows admission of evidence that has been discovered by means wholly independent of any

constitutional violation.” Nix, 467 U.S. at 443.

¶62. The trial court denied Gray’s motion to suppress his August 2, 2020 interrogation,

finding the confession to Detective Gulledge was voluntary and was not “fruit of the

poisonous tree” because it was “sufficiently removed from his [suppressed] July 17, 2020

statement to ‘purge the primary taint.’” I disagree and find the interrogation’s admission

reversible error because it was an improper continuation of questioning from Detective

29 Johnson’s suppressed interrogation.

¶63. On appeal, Gray does not appear to challenge the voluntariness of his August 2

statement to Detective Gulledge. However, the statement must not only be voluntary but

must be “sufficiently an act of free will to purge the primary taint.” Keller v. State, 138 So.

3d 817, 852 (¶79) (Miss. 2014) (quoting Brown v. Illinois, 422 U.S. 590, 602 (1975); Wong

Sun, 371 U.S. at 486). “Demonstrating such purgation is, of course, a function of

circumstantial evidence, with the burden of persuasion on the State. Relevant considerations

include observance of Miranda, ‘[t]he temporal proximity of the arrest and the confession,

the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the

official misconduct.’” Id. (quoting Kaupp v. Texas, 538 U.S. 626, 633 (2003)) (referencing

Miranda v. Arizona, 384 U.S. 436 (1966)).

¶64. After his July 17 statement to Detective Johnson, Gray remained in custody in

Colorado until August 2, 2020, when he was flown back to Mississippi on a plane with

Detective Gulledge, who took Gray straight to an interrogation room at the Pearl River

County jail and proceeded to interrogate him. During his interrogation with Detective

Gulledge, Gray did not request counsel (or to speak to his lawyer-father) before or during the

interrogation; however, he did not initiate the interrogation—Detective Gulledge did.

¶65. The constitutional principles of custodial interrogations are well established.

Armstrong v. State, 281 So. 3d 962, 966 (¶12) (Miss. Ct. App. 2019). Under Miranda, if the

accused invokes his right to remain silent, the interrogation must stop. Id. (citing Miranda,

384 U.S. at 479). If the accused invokes his right to have an attorney present, the

30 interrogation must stop until counsel is present. Id. (citing Edwards v. Arizona, 451 U.S.

477, 484-85 (1981)). “[F]urther interrogation is absolutely barred until counsel has been

made available to [the accused], unless the accused himself initiates further communication.”

Balfour v. State, 598 So. 2d 731, 744-45 (Miss. 1992) (citing Edwards, 451 U.S. at 484).

Additionally, once the accused has invoked his right to counsel, a valid waiver cannot be

established to further police questioning even if the accused has been re-advised of his

Miranda rights. Id. at 744.

¶66. Once Gray requested counsel during Detective Johnson’s custodial interrogation, any

questioning by any law enforcement should have ceased until either counsel was provided

or Gray himself reinitiated the questioning. Neither one of these circumstances had occurred

when Detective Gulledge continued Gray’s interrogation in Mississippi. Therefore, the

continuation of the interrogation with Detective Gulledge was improper. Further, Gray’s

signing another Miranda waiver form with Detective Gulledge did not cure the taint of the

previous interrogation with Detective Johnson because Gray’s invocation of his right to

counsel was still active, and he did not initiate Detective Gulledge’s interrogation.

Moreover, Gray very well could have believed the same coercive promises Detective Johnson

made to him were on the table, such as the witness protection program, if he talked. Gray

proceeded to give the same inculpatory information during this interrogation as he had

provided it to Detective Johnson, additionally admitting that he and Austin threw the murder

weapon in Lake Pontchartrain and that they had planned to rob but not murder Willie.

¶67. The trial court suppressed Gray’s statement to Detective Johnson because the

31 statement was elicited through coercive tactics and was made without an attorney despite

Gray’s request for one. The trial court found Gray invoked his right to counsel

approximately five minutes after the interrogation began, although the request had some

ambiguity (i.e., he was “thinking” of a lawyer to make sure he will not be “thrown away”).

The trial court found Johnson should have sought clarification about Gray’s request, but she

did not, and improperly continued her interrogation.

¶68. The lead opinion contends that Detective Johnson had no duty to clarify Gray’s

ambiguous request for counsel, a point not argued by the State either here or below. The lead

opinion must do so in order to nullify the trial court’s holding that Detective Johnson violated

Gray’s request for counsel because Detective Gulledge, not Gray, initiated the subsequent

interrogation. In Taylor v. State, 330 So. 3d 758 (Miss. 2021), the Mississippi Supreme

Court quoted Edwards v. Arizona, 451 U.S. 477, 484 (1981), that “‘when an accused has

expressed a desire to deal with the police only through counsel, further interrogation is

absolutely barred . . . unless the accused himself initiates further communication.’” Id. at 766

(¶20). Taylor involved two custodial interrogations, ten months apart and in different

counties, and regarding different charges. Id. at 760 (¶2). Yet the Mississippi Supreme

Court held that we incorrectly found that by asking to speak to Sheriff Jones, Taylor initiated

the second interrogation because the officers had gone to talk to Taylor, and but for their

improper contact, Taylor would not have asked to talk to Sheriff Jones. Id. at 768 (¶25). The

supreme court further cited Edwards and reasoned that even if the second interrogation had

a valid Miranda waiver, it would not matter because the defendant did not initiate the

32 interrogation. Id. at 767 (¶22). In the case before us, there was no allegation that Gray

initiated the second interrogation in Mississippi; therefore, it does not matter that he was

given a Miranda warning again by Detective Gulledge.

¶69. The trial court further found that Detective Johnson used numerous coercive tactics

to obtain Gray’s statement, making it involuntary. For example, Detective Johnson told Gray

she had overheard Gray’s telephone conversation with his father and that the father (a

lawyer) wanted Gray to cooperate; Gray was going to have to save himself, his wife, and his

infant child; Gray and his family’s lives were in danger, so he needed her help with

protection; they were trying to line up protection for “yall,” intimating that Gray’s wife might

be pulled into the missing-person case because the car with blood in it was also her car; and

Detective Johnson could not help Gray until he talked to her, and then he could get a lawyer.

¶70. The lead opinion would find Gray’s interrogation with Detective Gulledge voluntary,

focusing on the differences between the interrogations of how much time had passed, the

change of place, and the change in interrogators to conclude that Gray’s second interrogation

was admissible. However, Gray was held in Colorado for sixteen days, away from his

family. He was separated from his wife, who was also arrested, and infant child. In the

interrogations, he showed his concern for their safety, but this concern was used as a coercive

measure by Detective Johnson. After Gray was flown on a private plane to Mississippi, he

was taken directly to the jail, where he continued to have no contact with his family,

including his father who is a lawyer.

¶71. Nothing about the differences in time or location removed the taint of Detective

33 Johnson’s improper interrogation. Gray had no contact with family or counsel during the

sixteen days before being brought to Mississippi and taken for immediate questioning, which

he had not initiated. Detective Gulledge did not cure the coercive promises of assistance

Detective Johnson had made by thanking Gray for his cooperation and having him sign a

second Miranda form.

¶72. Lastly, the lead opinion contends the admission of Detective Gulledge’s interrogation

was harmless error, but I am unconvinced. The jury may not have believed Austin’s

testimony but for the confirmatory admissions that Gray made to Detective Gulledge, in

which case Gray may have been found guilty only of accessory after the fact rather than as

a principal to capital murder. Yet it would be hard for a jury not to believe Gray was a

principal once they heard his comment that they “obviously” intended to rob Willie.13 The

admission of Detective Gulledge’s interrogation was not harmless error.

¶73. Detective Gulledge’s interrogation was an improperly initiated follow-up to Detective

Johnson’s interrogation. Gray had been in custody in Colorado the entire time between the

two interrogations, and once in Mississippi, he was taken directly from the plane to the

interrogation room. Gray’s statement to Detective Gulledge on August 2 flowed directly

from the illegally obtained, suppressed confession that he gave to Detective Johnson on July

17; thus, this statement must be excluded as fruit of the poisonous tree. It was not

“sufficiently removed” from the prior July 17 confession to “purge the primary taint.”

13 Even though Gray claimed he did not know Austin intended to kill Willie, he would have been guilty under the felony murder doctrine codified in Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2020).

34 ¶74. I find the trial court abused its discretion in not suppressing Gray’s August 2, 2020

interrogation with Detective Gulledge as fruit of the poisonous tree. Accordingly, I would

reverse and remand for a new trial.

WESTBROOKS, McDONALD, McCARTY AND LASSITTER ST. PÉ, JJ., JOIN THIS OPINION.