Jarvis Jones v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-KA-01157-COA

JARVIS JONES APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/02/2023
TRIAL JUDGE: HON. KENT E. SMITH
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ANNA KATHERINE ROBBINS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DANIELLE LOVE BURKS
DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/20/2025
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., LAWRENCE AND ST. PÉ, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Jarvis Jones was convicted of armed robbery by a Union County Circuit Court jury.

The court sentenced him to forty years in the custody of the Mississippi Department of

Corrections (MDOC), with twenty-three years suspended and seventeen years to serve,

followed by five years of post-release supervision. On appeal, Jones argues that evidence

of prior convictions of the prosecution’s witness should have been admitted at trial. He also

argues that the trial court erred by allowing the prosecutor’s comments concerning his silence

after being read his Miranda rights.1 Following review, we affirm.

1
Miranda v. Arizona, 384 U.S. 436 (1966).
FACTUAL AND PROCEDURAL HISTORY

¶2. On June 10, 2021, Dakota Jackson and his fiancée Brittnay Campbell were robbed at

gunpoint in their home. Following an investigation, on October 5, 2021, a Union County

grand jury indicted Jarvis Jones and Duwayne Holloway for robbery with a deadly weapon.

On December 28, 2021, counsel for Jones filed a motion for production, discovery, and other

related relief on behalf of Jones, Holloway, and approximately fifty other clients in unrelated

cases. On July 21, 2023, Jones filed a motion for a continuance of his trial, which had been

scheduled for July 25, 2023. That motion was denied. On that same date, Jones also filed

a motion to sever his and Holloway’s cases. On July 24, 2023, the trial court granted the

motion and severed the cases. On July 25, 2023, the State filed a motion to prohibit Jones

from including a discussion of his potential sentence while at trial. The State also filed a

motion in “anticipat[ion] the State and [Jones] will discuss (or have discussed) a potential

guilty plea” to exclude from trial “any evidence – testimonial or otherwise – and any

argument of plea discussions between the State and [Jones].”2 The court addressed the

motions at a pre-trial hearing, holding that a discussion of either was not relevant and would

not be permitted at trial.

¶3. Pertinent to the issues before us on appeal, on July 10, 2023, the State filed a motion

in limine to prevent the introduction of character evidence through impeachment under Rule

609(a)(2) of the Mississippi Rules of Evidence. Specifically, the State intended to call

Sammie Joe Poole as a witness and was aware of three convictions on her record, two of

2
This motion did not reference any subject matter discussed and appeared to only
concern Jones.

2
which were burglary, and the other of which was child endangerment.3 On July 24, 2023,

the court granted this motion, stating that Poole’s “convictions were not crimes of dishonesty

or falsehood and, therefore, she would not be able to be impeached with those prior

convictions.” The court then ordered Jones to not make “reference to or discuss in any

manner the prior misdemeanor and felony convictions” of Poole. There is nothing in the

record indicating Jones made any objection to this motion or ruling.

¶4. Jones’s trial took place on July 25-27, 2023. The State’s first witness was Officer

Brian Carpenter from the Union County Sheriff’s Department. On June 11, 2021, Officer

Carpenter followed up on a report of a robbery that had occurred the previous night at an

address in Union County. He took statements from the home’s residents and victims of the

robbery, Dakota Jackson and Brittnay Campbell. This led to Carpenter receiving the name

of Sammie Joe Poole, who had given Jones a ride later in the evening. Carpenter interviewed

Poole, who told him that Jones had been “bragging about hitting a lick to her.” She also told

him that she witnessed Jones and “the black man with the bad eye[,]” later identified as

Holloway, “separating cash, marijuana” and “saw a black AR-15 . . . on the table.” Carpenter

interviewed Jones “[o]n June 21st[,]” about a week after interviewing Poole. Carpenter had

received two search warrants for phones in Jones’s possession but was unable to search them

because they had “pass codes on them,” and Jones “wouldn’t cooperate” by giving the pass

codes to him. Jones also “didn’t sign his rights waiver . . . nor gave a statement.” There was

no objection to this question or the introduction of the signed waiver into evidence by the

3
The record and briefs filed with this Court contain various spellings of Poole’s
name. She was a witness for the State, so we will use its spelling.

3
defense.

¶5. The State then called Dakota Jackson as a witness. At the time of the incident,

Jackson was living at the Union County home with Brittnay Campbell, his fiancée, and three

step-children. Jackson stated that he “had known [Jones] for while” and that they had “hung

out” previously. He also recalled that Jones went by the nickname “Jay.” On the day before

the incident, Jackson saw Jones who “had got out of jail and didn’t have any money, or

anything like that[.]” Jackson “gave him $200 just to make sure . . . he could eat, or

whatever.” On June 10, 2021, Jackson arrived home from work and was “cooking dinner”

and “drinking some” with Campbell. At some point, Jones arrived with a man named

“Young Money,” who he claimed was his cousin. Jackson later identified him as DuWayne

Holloway. Jackson, Campbell, Jones, and Holloway spent “four to five hours” together

“smoking and drinking . . . [and] just listening to music[.]” Jackson stated that Holloway’s

pregnant “baby momma” was outside and not feeling well. She did not enter the home at all,

and Jackson never interacted with her.

¶6. Jackson continued his testimony, stating that Holloway “had walked out” of the

residence, “on the porch,” and Jackson turned his back to the door. At some point, Holloway

and another man “busted in” the home. Jackson noticed Campbell “going kind of fast toward

the backdoor.” Suddenly, Holloway “put a gun to [his] head” and instructed him not to

“make a fuss, or fight, nothing like that.” Jackson “freaked out” and “just grabbed the gun

and moved it from [his] head.” Jackson testified that the gun was a pistol. Jackson turned

around and saw the unidentified third man “with a AK, or a Draco” who pointed it toward

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him, “either racked it or took the safety off[,]” and told him “not to move” or the man would

shoot him. While these events were occurring, Jones “was just kind of over in the corner”

and “didn’t seem scared or nothing like that.” Jackson also noted that neither of the men

pointed their guns at Jones.

¶7. Jackson testified that the thieves stole an “AR-15, a Smith and Wesson airweight .38

special[,]” approximately “$3,900 in cash and two cell phones” belonging to him and

Campbell. Jackson had just received his tax return and cashed it, getting “$9,000 all

together.” He had paid some of his and Campbell’s bills, and the $3,900 was the remaining

amount. He testified that he had the cash out at the time of the crime because he was going

to “purchase some weed” from Holloway. Jackson also noted that he never saw the two men

steal anything from Jones, but Jones “played like he got robbed too.”

¶8. “[W]hen everything was over,” Jackson heard Jones say, “[H]ey, brother,” and walk

“out the door with his hands in his pockets.” Jones then came back into the residence and

stated, “[T]hey just robbed me[.]” Holloway and the other suspect “took off . . . in a white

car.” Jackson and Campbell then gave Jones a ride to Stokes Supermarket to meet Sammie

Joe Poole. Jackson dropped off Jones and stated he never heard from or saw him again.

Jackson also testified that after the robbery, Jones claimed he did not know either of the

assailants.

¶9. The State also called Brittnay Campbell to testify. She stated that on the day of the

robbery, she was at home with Jackson, along with Jones and Holloway, who were over for

“[s]everal hours.” Campbell did not know Holloway and had only met Jones “a couple of

5
times.” Campbell noticed Holloway “going in and out” of the house because “his girlfriend

was in the car . . . pregnant and she didn’t feel good.” Neither she nor Jackson thought

“much of it” at the time. While Campbell was cooking dinner, she heard Jackson “holler,

‘what the hell,’ or something.” As she “started to go into the living room . . . [Jones] pushed

[her] back into the kitchen” and told her “not to come in there at that moment.” She noted

that Jones’s demeanor was “[f]ine” and that he was “[j]ust standing there.” Campbell

observed a man she did not recognize “in the living room with a gun to [Jackson’s] head” and

another man with a gun.

¶10. Campbell “ran out the back door . . . to [her] sister’s house” nearby to “try to call the

cops.” It was then that “whoever the third person was and [Holloway] and whoever was in

the car” outside her home “flew up the driveway.” She threw a “grill lid” at the car to

attempt to stop them but only hit the windshield. Campbell went back to her residence and

got into her truck with Jackson and Jones. Jones “said he knew where” the assailants would

be heading and that they “were going to find them.” He had also used Campbell’s phone “to

call someone to come pick him up” at Stokes Supermarket. That person was Sammie Joe

Poole. Campbell and Jackson dropped Jones off with Poole and planned to follow them to

the gas station. However, Jones and Poole did not follow them, and “that’s when [they]

started putting two and two together[, t]hat [Jones] probably had a part in it.” Campbell

stated that while she never saw Jones with a phone, she also never saw anything taken from

him. Campbell “went to the police department that night” and to look at the crime scene the

following day. She testified that the items stolen from her home were Jackson’s “iPhone 11,

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[her] iPhone SE, an AR-15, a 15 Smith and Wesson .38 Special[,]” and cash in the amount

of $3,960. She and Jackson never recovered any of the stolen items.

¶11. Finally, the State called Sammie Joe Poole to testify. At the time of the crime, Poole

had known Jones for approximately “five or six years.” That night, Poole got off work and

saw a Facebook message from Jones “asking [her] to come get him” at Stokes Supermarket.

Screenshots of the conversation were entered into evidence, and the State noted that Jones

had “unsent” two messages. Poole testified that both deleted messages were Jones asking

her to pick him up at Stokes Supermarket. At approximately 12:00 a.m., Poole picked up

Jones. Jones had arrived first with “a white girl and a white guy[,]” whom Poole did not

know. Once Jones was in Poole’s car, he stated, “[F]ollow them, but we’re going to leave

them.” Jones then instructed Poole to “[t]ake him home,” where he lived with his mother.

During the trip, Jones informed Poole that “we hit a lick” but said nothing further. Poole

arrived at Jones’s home and saw a “black . . . thin” man with a “messed-up eye[,]” who was

later identified as Holloway, already there. Poole went into the house and observed “some

guns, on the table, and some weed and some money.” Jones and Holloway were “counting

the money and kind of like flashing it around.” They both “kept saying we hit a lick.” Poole

stated that at this point, she “thought to [her]self, they done robbed somebody.”

¶12. Poole and Jones took Holloway home before driving to a “hotel room in Holly

Springs.” Waiting for them there was a white man named Creed Shaklefield. All three of

them went to a room for approximately twenty minutes and then left. They then left to go

to “some house” in Red Banks “off some old country road[.]” Once they arrived, Jones

7
“tried to get [Poole] to go up there and act like - - obviously, somebody had a gun. And they

wanted [Poole] to go up there to say the gun was [hers] to get it back.” Poole refused

because she “was on probation and . . . just do[es]n’t deal with guns.” At some point, she

realized that she left her purse “in the car and they had robbed [her] for a hundred dollars.”

Poole’s credit card was also missing. She testified that she then told the men she was “ready

to go” and asked where they needed to be taken. Poole dropped off Shaklefield “at Watson

somewhere” and “took Mr. Jones to his baby mama[’s] house in Potts Camp.” She dropped

off Jones at “6:00 or 7:00 that [next] morning[,]” approximately five to six hours after

picking him up at Stokes Supermarket. Poole then went to her home. At approximately

6:58 p.m. that same day, Officer Carpenter went to Poole’s home and found her sleeping in

her car, intoxicated. He took her to jail, where she spent the night before giving a statement

the next morning.

¶13. The State rested following Poole’s testimony, and Jones moved for a directed verdict.

That motion was denied. After being reminded of his rights, Jones indicated that he was

going to testify in his own defense. Jones stated that on June 10, 2021, he “was robbed.”

Holloway “had hit [him] up” and “wanted some grass.” Jones clarified that “grass” was

another word for marijuana. Jones stated that he “knew where something was” and decided

to “go to [Jackson] and get it for cheap.” Specifically, Jones testified he intended to “get it

cheaper from Dakota Jackson and sell it to [Holloway] for higher.” Jones gave him

Jackson’s address and stated Holloway “and them was supposed to wait at the road” while

Jones went into the home to get the marijuana and “bring it [out] to them.” Holloway

8
“wanted to check the [marijuana] out” himself.

¶14. Jones and Holloway entered Jackson’s home and began “talking about the weed.”

They stayed to talk and drink for “a couple of hours[.]” Jones noted that Holloway was

“steadily in and out” the door of the home to allegedly speak to “his baby mama” waiting in

the car outside. The car’s windows were tinted, so Jones could not confirm the identity of

this person. Later that evening, Jackson showed Holloway “all kind of stuff through the

house, like guns and all this[,]” and began showing Jones “how to break down his gun.”

Jones stated that both he and Jackson were in the floor when the “door came open . . . [, and]

they bust[ed] in” to the home. He identified one of the men as Holloway but claimed he did

not know the other. He continued, “They put the guns on us and stuff like that.” Jones saw

Campbell “come from the kitchen” and “told her to get out of here[.]”

¶15. Jones stated that his phone, money, and Jackson’s “stuff” were all stolen. He “ran

behind” Holloway and asked, “[Y]ou really going to do me like this[?]” Jones then “went

next door to [Jackson’s] people house,” where he “used the phone to get [Poole] to come

pick [him] up.” Poole picked him up, and Jones told her they had been robbed and listed

“everything that was taken.” Jones stated he and Poole “went through a road block” before

she dropped him off at his home. That was the last time he saw her that night. He also

testified that Holloway was not his cousin, and he did not know anyone named Creed. Jones

further testified that Holloway did not point a gun at him; rather, the unidentified man did

it. Jones stated that he was picked up by the police on June 11, 2023, and “wrote a whole

statement.” He alleged that Officer Carpenter was “keeping something out.” The defense

9
rested following Jones’s testimony.

¶16. After resting, the defense renewed its motion for a directed verdict. The court denied

this motion. Following a conference regarding jury instructions, both sides gave their closing

arguments. Notably, during the State’s rebuttal, the following statements were made:

So, 11 days later, when [Officer] Brian Carpenter brings him [] into the police
station to give a statement, he won’t even sign the Miranda form. He writes
zero words on his statement. Wouldn’t, if you were the victim of a crime, say,
hey. Hey, I was robbed. Wouldn’t you say that? He says he doesn’t want to be
a snitch. But, then on the other hand, he says, but I did write a statement. Of
course, we don't have that statement, because it doesn’t exist. If that made
sense, he’s saying I didn’t want to be a snitch, but then I snitched on him
because I made a statement. That makes no sense. Always an excuse for
something. He’s talking out of both sides of his mouth.

Jones did not make any objections during the State’s closing argument.

¶17. At the conclusion of the trial, the jury found Jones guilty of armed robbery. On July

27, 2023, the court held a sentencing hearing for Jones. Jones was sentenced to forty years

in the custody of the MDOC, with twenty-three years suspended and seventeen years to

serve, followed by five years of post-release supervision. Jones filed a motion for a judgment

of acquittal notwithstanding the verdict and a motion for a new trial. Both motions were

denied. On October 13, 2023, Jones appealed.4

STANDARD OF REVIEW

¶18. “Our standard o[f] review regarding the admission of evidence is abuse of discretion,

and we will not reverse the trial court’s evidentiary ruling unless the error adversely affects

4
On April 3, 2024, Jones filed a motion with this Court to supplement the record
with the transcript of the pre-trial motions hearing held on July 24, 2023. The motion
additionally requested that the briefing schedule be suspended until the transcript was
received by the Court. On April 24, 2024, this Court granted the motion.

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a substantial right of a party.” Sandefer v. State, 952 So. 2d 281, 285 (¶9) (Miss. Ct. App.

2007) (quoting Mingo v. State, 944 So. 2d 18, 28 (¶27) (Miss. 2006)).

ANALYSIS

¶19. On appeal, Jones argues that evidence of Poole’s prior convictions should have been

admissible and that the trial court erred by allowing comments concerning his silence after

being read his Miranda rights.

I. Admissibility of Poole’s Prior Convictions

¶20. The State filed a motion in limine alleging that evidence of the State’s witness Poole’s

prior convictions of burglary and child endangerment was impermissible at trial under Rule

609(a)(2). Rule 609 of the Mississippi Rules of Evidence provides in relevant part:

The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by
death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, when the witness is
not a party; and
(B) must be admitted when the witness is a party, if the
probative value of the evidence outweighs its prejudicial effect
to that party; and
(2) for any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the
elements of the crime required proving–or the witness’s admitting–a
dishonest act or false statement.

MRE 609(a)(1)-(2). The trial court found that “Poole’s prior misdemeanor and felony

convictions [we]re not crimes involving dishonesty or false statements within the meaning

of the Mississippi Rules of Evidence, as they [we]re not crimes in the nature of crimen falsi,

11
and the introduction would only tend to prejudice the jury.”5 This result, however, only

addressed Rule 609(a)(2); neither the motion nor the court’s order addressed Rule 609(a)(1).

¶21. The State concedes that Poole’s prior felonies may have been admissible under Rule

609(a)(1). We find the convictions were most likely admissible, as our appellate courts

“interpret [Rule] 609(a)(1) as allowing full impeachment of prosecution witnesses without

the requirement of a balancing test, except in extreme situations[.]” White v. State, 785 So.

2d 1059, 1062 (¶10) (Miss. 2001). However, this argument was not properly preserved by

Jones at trial; there is no indication in the record or the supplemental transcript that he ever

made an objection to the State’s motion. Our state’s precedent is clear that a defendant who

does not make a contemporaneous objection at trial “must rely on plain error to raise the

assignment on appeal.” Cozart v. State, 226 So. 3d 574, 581 (¶23) (Miss. 2017) (emphasis

added) (quoting Brown v. State, 690 So. 2d 276, 297 (Miss. 1996)).

¶22. “To determine if plain error has occurred, we must determine [(1)] if the trial court

has deviated from a legal rule, [(2)] whether that error is plain, clear, or obvious, and [(3)]

whether the error has prejudiced the outcome of the trial.” Walker v. State, 385 So. 3d 457,

465 (¶24) (Miss. Ct. App. 2023) (emphasis added) (quoting Green v. State, 183 So. 3d 28,

31 (¶6) (Miss. 2016)), cert. denied, 387 So. 3d 63 (Miss. 2024). As stated, the State

concedes there may have been a legal avenue for Poole’s prior convictions to be admitted

5
The State is correct that burglary was not a crime involving a dishonest act or a
false statement. See Townsend v. State, 605 So. 2d 767, 770 (Miss. 1992) (“We hold, in
accordance with the majority of federal courts, that a burglary conviction is not ordinarily
admissible under M.R.E. 609(a)(2) and that convictions under that rule should be limited to
crimes in the nature of crimen falsi.” (citing United States v. Ashley, 569 F.2d 975 (5th Cir.
1978))).

12
into evidence via Rule 609(a)(1). Regardless of whether we were to find the error “obvious,”

we would also need to find Jones’s trial was prejudiced by the exclusion. “[P]rejudice will

not be found when the State presents an overwhelming amount of evidence against the

accused.” McLaughlin v. State, 338 So. 3d 705, 725 (¶56) (Miss. Ct. App. 2022) (citing

Swinney v. State, 241 So. 3d 599, 606 (¶15) (Miss. 2018)). Indeed, “prejudice often is

lacking when the weight of the evidence against a defendant is overwhelming[.]” Id.

(quoting Stevenson v. State, 320 So. 3d 1225, 1230 (¶19) (Miss. 2021)); see also Hall v.

State, 201 So. 3d 424, 428 (¶12) (Miss. 2016) (finding no plain error where “the weight of

the evidence of [defendant]’s guilt was overwhelming,” specifically citing that “[t]wo

eyewitnesses testified that Hall was the [perpetrator]”).

¶23. Jackson and Campbell were eyewitnesses to the armed robbery, and both testified at

trial. Jackson recounted for the jury that Jones brought Holloway, a man he claimed to be

his cousin, into the couple’s home. He stated that Holloway kept walking in and out of the

door throughout the night to speak with someone outside waiting in the car. Jackson recalled

that when the armed men came into his home, he was the only person on the ground and was

the only person with a gun to his head. He testified that Jones did not have a weapon pointed

at him and did not even really appear “scared” as the robbery occurred. Campbell testified

that she witnessed Jackson having a gun pointed at his head, but she did not see Jones being

threatened with a weapon at all. In fact, when the robbery began, Jones instructed Campbell

to stay in the kitchen “at that moment,” exhibiting a “fine” demeanor.

¶24. Poole’s testimony picked up where the robbery concluded. She was able to discuss

13
Jones’s whereabouts the rest of the evening, which was in and of itself a lengthy and detailed

portion of testimony. Jones contends that the “the State’s case relied heavily on Poole’s

testimony,” and without it, their case “was substantially weaker.” Crucially, though, the jury

still would have heard the entirety of Poole’s testimony even if the evidence of her prior

convictions were permitted. The evidence of those prior convictions would have been

permitted only through impeachment during her cross-examination and only as a way to cast

doubt upon her reliability as a witness. Poole admitted that she was “on probation” while

testifying; therefore, the jury was aware that she had committed some kind of offense in the

past. This Court finds the weight of the evidence of Jones’s guilt “to be overwhelming” and,

thus, finds no plain error in the exclusion of Poole’s prior convictions. Id.

II. Prosecution’s Comments

¶25. Jones also argues that the trial court erred in allowing comments from the prosecution

regarding his post-Miranda silence.

A. Procedural Bars

1. Direct-Examination

¶26. First, Jones takes issue with questions asked by the State during its direct examination

of Officer Carpenter. He specifically cites the following exchange:

Q: I’m going to show you a document, a couple of documents. Would you
review those and tell the jury what they are[?]

A: That’s the standard right[]s waiver that I always use at the sheriff’s
department.
....

Q: All right. And did Mr. Jones cooperate with that, signing it?

14
A: He didn’t sign his rights waiver, in either place, nor gave a statement.
....

Q: So, Officer Carpenter, at this point, you have attempted to question,
mirandized and question Mr. Jones?

A: Correct.

Q: You get nothing out of that?

The State also introduced Jones’s unsigned Miranda waiver form and blank accompanying

statement. Neither the line of questioning nor the introduction of the waiver form were

objected to at trial. And “failure to object contemporaneously at trial waives any claim of

error on appeal.” Cox v. State, 183 So. 3d 36, 55-56 (¶69) (Miss. 2015) (quoting Gillett v.

State, 56 So. 3d 469, 520 (¶148) (Miss. 2010)); see also Howell v. State, 860 So. 2d 704, 756

(¶185) (Miss. 2003); Walker v. State, 671 So. 2d 581, 597 (Miss. 1995). Additionally, Jones

“failed to timely request a mistrial or curative instruction” pertaining to this exchange, which

serves as a procedural bar to the issue. Smith v. State, 90 So. 3d 122, 127 (¶15) (Miss. Ct.

App. 2012) (citing Randall v. State, 806 So. 2d 185, 213 (¶69) (Miss. 2001); Logan v. State,

773 So. 2d 338, 349 (¶¶43-46) (Miss. 2000); Collins v. State, 81 So. 3d 1174, 1179 (¶13)

(Miss. Ct. App. 2011)); see also Parker v. State, 20 So. 3d 702, 707-08 (¶23) (Miss. Ct. App.

2009).

2. Closing Argument

¶27. Jones further contends the State made improper comments during its closing argument

before the jury, particularly:

When they’re out looking for him and he finally gets brought in for a
statement, why didn’t he say, wait, no. No, I’m a victim too. I was robbed too.

15
....

So, 11 days later, when [Officer] Brian Carpenter brings him [] into the
police station to give a statement, he won’t even sign the Miranda form.
He writes zero words on his statement. Wouldn’t, if you were the victim of
a crime, say, hey. Hey, I was robbed. Wouldn’t you say that?

(Emphasis added). Jones did not make any objections during the State’s closing argument.

Again, “failure to object contemporaneously at trial waives any claim of error on appeal.”

Cox, 183 So. 3d at 55-56 (¶69) (quoting Gillett, 56 So. 3d at 520 (¶148)); see also Howell,

860 So. 2d at 756 (¶185); Walker, 671 So. 2d at 597. And additionally, Jones “failed to

timely request a mistrial or curative instruction.” Smith, 90 So. 3d at 127 (¶15) (citing

Randall, 806 So. 2d at 213 (¶69); Logan, 773 So. 2d at 349 (¶¶43-46); Collins, 81 So. 3d at

1179 (¶13)); see also Parker, 20 So. 3d at 707-08 (¶23). Such failure serves as “a procedural

bar to our review of the issue.” Id.

B. Plain Error

¶28. As Jones is procedurally barred from this argument as to both alleged errors, he “must

rely on plain error to raise the assignment on appeal.” Hurt v. State, 34 So. 3d 1191, 1195-

96 (¶12) (Miss. Ct. App. 2009) (emphasis added) (finding “[w]here it was alleged that the

prosecutor made improper comments during both opening and closing arguments as well as

while examining witnesses, but no objections were raised at trial, the defendant who fails to

make a contemporaneous objection must rely on plain error to raise the assignment on

appeal” (quoting Jackson v. State, 924 So. 2d 531, 542 (¶35) (Miss. Ct. App. 2005))).

¶29. As with our prior plain-error analysis, “we must determine [(1)] if the trial court has

deviated from a legal rule, [(2)] whether that error is plain, clear, or obvious, and [(3)]

16
whether the error has prejudiced the outcome of the trial.” Walker, 385 So. 3d at 465 (¶24)

(emphasis added) (quoting Green, 183 So. 3d at 31 (¶6)). The United States Constitution

indeed guarantees “[a]n accused . . . the right to remain silent.” Swinney, 241 So. 3d at 608

(¶29) (quoting Austin v. State, 384 So. 2d 600, 601 (Miss. 1980)). “Evidence of post-arrest

silence is improper because it violates the accused’s right against self-incrimination.”

Swinney, 241 So. 3d at 608 (¶29) (quoting Austin, 384 So. 2d at 601). As such, “[i]t is

improper and, ordinarily, reversible error to comment on the accused’s post-Miranda

silence.” Id. (quoting Quick v. State, 569 So. 2d 1197, 1199 (Miss. 1990)).

¶30. To decide whether a deviation from this legal rule occurred, “[t]he proper test for

determining if a comment on a defendant’s post-Miranda silence amounts to reversible error

is whether the natural and probable effect of the statement is to create an unjust prejudice

against the accused resulting in a decision influenced by prejudice.” Smith v. State, 90 So.

3d 122, 127 (¶12) (Miss. Ct. App. 2012) (emphasis added) (quoting Gunn v. State, 56 So. 3d

568, 571 (¶14) (Miss. 2011)). Further, “the mere mention of a defendant’s refusal to give

a statement does not, in all instances, require reversal.” Id. (citing Gossett v. State, 660 So.

2d 1285, 1291 (Miss. 1995)). It appears that the State did indeed violate a known rule in

commenting on Jones’s post-trial silence, which Jones had a right to invoke.

¶31. “Even when a prosecutor has made an impermissible comment, this Court requires a

showing of prejudice to warrant reversal.” Johnson v. State, 311 So. 3d 1161, 1178 (¶36)

(Miss. Ct. App. 2020) (emphasis omitted) (quoting Outerbridge v. State, 947 So. 2d 279, 286

(¶23) (Miss. 2006)). This Court has “held that a defendant could not be prejudiced by

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unnecessary and inappropriate prosecutor statements when the evidence presented was

insurmountable.” Walker, 385 So. 3d at 465 (¶24) (quoting Green, 183 So. 3d at 31 (¶6)).

This brings us back to our previous recounting of the evidence presented against Jones, see

supra ¶¶23-24. Jackson and Campbell presented eyewitness testimony of the robbery itself,

emphasizing that Jones was not physically threatened whatsoever. Additionally, Poole was

able to provide details as to Jones’s whereabouts following the robbery and divulged that he

was “bragging” that he had “hit a lick” that night. She also provided testimony that she

witnessed Jones and Holloway dividing cash and marijuana between themselves, as well as

noticing a black AR-15—resembling the weapon stolen in the robbery—nearby. We simply

cannot find Jones was prejudiced when such “insurmountable” evidence was presented

against him. Johnson, 311 So. 3d at 1177-78 (¶36) (quoting Ambrose v. State, 254 So. 3d

77, 129 (¶161) (Miss. 2018)). Even with his own testimony to counter the State’s evidence,

the jury clearly did not believe Jones’s account of the events. Accordingly, there is no plain

error evident in the State’s comments on Jones’s silence.

CONCLUSION

¶32. Jones failed to make contemporaneous objections at trial on the record regarding his

two issues on appeal. This Court, after conducting a plain-error analysis, finds Jones’s

arguments are not persuasive. We affirm Jones’s conviction and sentence.

¶33. AFFIRMED.

BARNES, C.J., CARLTON, P.J., WESTBROOKS, McDONALD, McCARTY,
EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR. WILSON, P.J., CONCURS IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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