Walker v. State
| Citation | 340 So.3d 335 |
| Decision Date | 07 December 2021 |
| Docket Number | 2020-KA-00228-COA |
| Parties | Demario WALKER a/k/a Demario Dontez Walker a/k/a Kiriyama San Givonni a/k/a Kiriyama Zyreonia San Givonni, Appellant v. STATE of Mississippi, Appellee |
| Court | Court of Appeals of Mississippi |
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF DEMARIO WALKER A/K/A DEMARIO DONTEZ WALKER A/K/A KIRIYAMA SAN GIVONNI A/K/A KIRIYAMA ZYREONIA SAN GIVONNI (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL
BEFORE CARLTON, P.J., GREENLEE AND SMITH, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Demario Walker was convicted of making "False Representations to Defraud Government" in violation of Mississippi Code Annotated section 97-7-10 (Rev. 2014), which punishes anyone who, "with intent to defraud the state or ... [a] subdivision of state or local government, knowingly and willfully ... makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry...." Walker was sentenced as a nonviolent habitual offender to serve five years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole under Mississippi Code Annotated section 99-19-81 (Rev. 2015) and ordered to pay a $7,500 fine.
¶2. Walker appeals his conviction and sentence, asserting that (1) the evidence was insufficient to sustain the verdict because Walker never submitted a fraudulent order to the "Circuit Court [C]lerk of Greene County, Mississippi" as set forth in his indictment; (2) the trial court constructively amended Walker's indictment; (3) the trial court erred when it found that he "opened the door" to allow evidence of other crimes or bad acts; (4) the trial court erred when it denied Walker's motion to dismiss and motion to suppress evidence; (5) the trial court erred when it allowed Walker to represent himself during pretrial and trial proceedings; (6) the trial court erred when it allowed Judge Kathy King Jackson to testify; (7) the trial court abused its discretion by not appointing an investigator to assist in Walker's defense; and (8) Mississippi Code Annotated sections 13-5-1 and 13-5-8 (Rev. 2019) (concerning jury service) are unconstitutional, and Walker's right to a fair cross-section of the community in his jury venire was violated. For the reasons addressed below, we affirm Walker's conviction and sentence.
¶4. On August 14, 2018, Walker was arraigned. Walker was tried in February 2020. Walker represented himself with counsel serving in various capacities as detailed below. Prior to trial, Walker filed in excess of 120 pro se motions, along with subpoenas duces tecum and other preliminary pleadings. Walker also filed a "Motion to Challenge the Array of the Jury" four days before trial. To avoid repetition, the pretrial filings and proceedings relevant to the issues Walker raises on appeal are discussed in their contexts below.
¶5. The jury was seated on February 11, 2020, and after opening statements, the State presented its case-in-chief.
¶6. Alicia Box, the chief records officer for MDOC at the South Mississippi Correctional Institute (SMCI), testified that she held that position in June 2017, and in that position, she commonly received court orders. On June 15, 2017, she received a phone call from someone who identified "herself" as a court official and requested documents from Walker's prison records. Box testified that she "assum[ed]" the person was an African American female. She did not recall the name the caller gave to her. Box said she scanned the documents and forwarded them to the email address provided by the caller (court.docs.orders@usa.com).
¶7. Later that morning, a response from that email address populated in Box's email inbox with only the document "in the circuit.doc" attached. The attached document was an uncertified order purportedly electronically signed by Senior Circuit Judge Kathy King Jackson, vacating the sentence of inmate Horace Ervin (the Ervin order). Box responded to the email and informed the sender that she would forward the email to MDOC's records office, which typically handled orders for vacated sentences.
¶8. The next morning, Box received another email from the same sender with the document "order(1).doc" attached. The attached document was another uncertified order purportedly electronically signed by Judge Jackson, captioned "In the Circuit Court of Greene County, Mississippi, Demario D. Walker v Marshall Turner, et al. , Cause No. 2017-004 ." The order was entitled "Order Granting Motion to Produce Records, Granting Motion For Legal Assistance, and Granting Motion For Summary Judgment" (the Walker order). The Walker order is the order described in Walker's indictment. The Walker order provided, among other relief, that "MDOC [R]ecords Director Alicia Box and Jawaski Mallett [are to] provide the Plaintiff, Demario Walker[,] with a full and complete copy of his prison record ... at no cost to [Walker] upon receipt of this order or not less than 14 days." Again, Box forwarded the order to MDOC's records office.
¶9. Box testified that she then notified her supervisor because it was unusual for her to receive these types of orders and requests by email. Box and her supervisor alerted MDOC's Criminal Investigations Division (CID) of the situation and turned over the emails and orders from the suspicious sender.
¶10. Cecelia Bounds, the Greene County Circuit Court Clerk, also testified for the State. She confirmed that she held that position in June 2017. Bounds was shown the State's Exhibit 3, which she identified as a list of calls made on June 16, 2017, to the circuit clerk's phone number. She testified that on that morning she received a phone call in which the caller was asking for information in Walker's case; the call caught Bounds's attention because the caller identification displayed a phone number from a 202 area code that was not a local area code. Bounds said that the caller introduced themself as Walker's representative and asked whether an order had been filed in Walker's case. Bounds told the caller that she did not give that information over the phone and then "the call ended."
¶11. Bounds testified that later that morning, she received another phone call from the same number. This time, the caller purported to be an MDOC representative. The caller asked whether an order had been filed in Walker's case. While she was on the call, Bounds heard an intercom go off in the background from the caller's end. The intercom set off "red flags" in her mind; it made Bounds think that the caller was "an inmate in the prison." She testified that she had been to the prison and heard the intercoms going off in that manner. Bounds said she told the caller she did not believe the person worked for MDOC. The caller first argued with her and then hung up on her. Bounds testified that the two phone calls were made by the same person. She also testified that "the voice on the phone that [she] spoke with was very similar to Mr. Walker's" voice. After the phone calls, Bounds contacted Chief Investigator James Cooksey of MDOC's CID and told him that she believed she had received phone calls from an inmate.
¶12. Bounds testified that she then received a phone call from an MDOC official requesting verification of two orders MDOC had received and requesting certified copies of those orders.2 Bounds identified the State's Exhibit 2 (the Walker order) as one of those orders. Bounds testified that she did not have the order in her files, so she asked the official to email the uncertified order to her office. When she got the order, Bounds immediately recognized that the electronic signature on the order was not Judge Jackson's signature—which is large and unique. She also knew that Judge Jackson did nothing electronically, especially not signing an order. In her twenty years at the circuit clerk's office, and her twelve years as the circuit clerk, Bounds testified that she had never seen an electronically signed order from Judge Jackson. Regarding the Walker order, Bounds also testified that it had a valid numerical style of a case pending in the Greene County Circuit Court, but it was not the correct cause number for "Demario Walker v. Marshall Turner ," which also indicated to her that it was not a valid order.
¶13. Bounds was also questioned about the State's Exhibit 1 (the Ervin order). She testified that this order was the one that the MDOC official called to have verified, and she did not have that order in her files either. She asked the official to email the order to her office. Like the Walker order, the Ervin order also had Judge Jackson's electronic signature. Bounds testified that she verified through Judge Jackson that she did not electronically sign either of the orders. Judge Jackson also testified that she did not use an electronic signature and that she did not sign the orders.
¶14. After confirming...
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