IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-01698-COA MICAH BOSTIC A/K/A DROP APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/10/2017 TRIAL JUDGE: HON. PAUL S. FUNDERBURK COURT FROM W HICH APPEALED: ALCORN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: J. TRENT KELLY NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/18/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ. McDONALD, J., FOR THE COURT: ¶1. Micah Bostic was convicted of capital m urder i n the Alcorn C ounty Circuit C ourt and sentenced to a term of lif

e im prisonm ent without e ligibility f or parole. Subsequently , Bostic f i led a m otion f

o r a j udgm ent of acquittal notwithstanding the verdict (“J N O V ” ) a n d alternatively r e quested a new trial. The m otion was denied. B o s t i c n o w appeals the issue of whether the circuit c ourt erred in f a i l ing to suppress his s tatem ents m a d e to the of f icers

on February 3, 2016, which were obtained a f ter he r equested an attorney

. Although we agree that the m otion to suppress should have been granted because t he of f i cers v iolated his rightsagainst s elf -incrim ination and his r ight to counsel, as guaranteed by the Fif t h and Fourteenth
Am endm ents, 1 we f

ind t hat the court’s decision resulted in harml e s s error and af f irm the conviction. FACTS AND PROCEDURAL HISTORY ¶2. On February 1, 2016, two m en attem pted to r ob the M apco service station i n Corinth, Mississippi. W hen t he clerk reached f or the panic alarm one suspect s hot her m ultiple tim es. Corinth Police responded t o the Mapco service s tation’s panic alarm at 5:39 a.m . The clerk later died f

rom those w ounds. W hen the detectives v iewed the surveillance video, Brookly n Tray lor, t he co-def

e ndant, w as identif

ied as the shooter

. T h e s e cond suspect could not be identif ied f rom the Mapco surveillance video. ¶3. W h en Tray lor’s parents learned t hat he was a s uspect, t h e y t o o k him to the police station. T ray l or denied his involvem ent in his f i rst i nterview. On Februa r y 2, 2016, Tray lor’s parents watched the surveillance video and m e t with him p rivately

. Then, Tray lor
gave another statem ent in w hich h e adm itted to com m itting the crim e and stated Bostic, the appellant, also known as “Drop,” was with him

. ¶4. On or about February 3, 2016, Bostic was arrested. D uring Bostic’s interrogation, he clearly invoked h is right to counsel when h e s tated, “ I am taking m y m other’s advice, I want

a n a t t o r n ey , ” but the o f

f icers c ontinued questioning him

. Bostic requested a n attorn e y several tim es throughout the interr o g a t i o n , y et the interrogation lasted nearly f if ty -two

1 T h e f ed eral law s reg ard in g th e rig h t ag ain st self -in crim in atio n an d th e rig h t to co u n sel d u rin g cu sto d ial in terro g atio n g en erally ap p l y to th e S tate s by i n co rp o ratio n th ro u g h th e d u e p ro cess clau se o f t h e F o u rteen th A me n d me n t t o th e f e d eral C o n stitu tio n . C h a m b erlin v. S ta te , 9 8 9 S o . 2 d 3 2 0 , 3 3 2 (¶3 5 ) (M iss. 2 0 0 8 ). 2m inutes.

¶5. A grand jury indicted Bostic and Tray lor f or capital m

urder with the underly ing f elony being a rm ed robbery

. Bostic f iled a m otion to sever the cases, which the trial court granted. ¶6. O n J a n u a r y 19, 2017, Bostic f iled a m otion to suppress his statem ents ma d e o n o r about F ebruary 3, 2016. Bostic a rgued that despite his m ultiple requests f

or an attorney , the investigators continued to interrogate him violating his constitutional right to an attorney

. ¶7. On February 7 , 2 017, the State f iled its response to B ostic’s m otion t o suppress. T he State argued Bostic’s r equest f or an attorney was vague. The State contends the investigators im m edia tely ceased the i nterrogation and did not ask any f urther questions regarding the charge at issue. The S tate also contends the f ew words spoken by t he investigator were not likely to elicit an incrim i nating response. ¶8. Af ter a hearing o n t he issue the circuit court denied Bostic’s m otion to suppress his

statem ents m ade on February 3, 2016. The court f ound that the s tatem ents m ade b y Bostic

to the detectives “were voluntarily , knowingly and intelligently

m ade af ter being inf

orm ed of his Miranda rights which he knowingly a n d voluntarily waived.” 2 ¶9. On October 3, 2017, a trial on t he m erits began. During the t r i a l t h e S t a t e called f if teen witnesses. Som e of the witnesses testif ied to the l ogistics of the crim e itself but the f ollowing witnesses’ testim ony pertained to Bostic’s involvem e nt. ¶10. C a p t a in Benjam i n Gann testif ied that he f

ound a loose distinctive patte r n e d b l u e hoodie in a dum

p s ter n ear t he laundrom a t 75–100 y ards away f r om the scene of the incident.

2 S ee M ira n d a v. A rizo n a , 3 8 4 U .S . 4 3 6 , 4 7 9 (1 9 6 6 ).

3Gann also t estif ied t hat all o f t h e g arbage in the dum pster was bagged except f or the distinctive patterned blue h oodie which f it the description of w hat the second s uspect wore. ¶11. During of

f icer Jerry Rogers’s testim ony the S t a t e o f f e r e d B o s t i c ’ s v i d e otaped i n t erview into evidence. The videotaped interview included details p ertaining to Bostic’s prior c o n v i c t i o n f

or arm ed robbery , his w hereabouts a nd a libi f or the night bef

ore and

m orning o f t h e incident, his af f iliations with Tray l or, and his prior gang af f iliations with “gangster disciple s . ” Bostic never adm itted to being at the scene where the victim in this

case was m

urdered. ¶12. Ashanti A lexander, who c laim ed to b e B o s t i c ’ s g i rlf riend during the tim e of

the incident, testif

ied that Bostic was known as “Drop.” Ashanti could not testif y about Bostic’s whereabouts on the night b ef ore the i n c i d e n t o r during the tim e t he incident occurred (som etim e bef

ore 5:39 a.m .). S he c ould only testif y that B ostic arrive d a t E l e ase Lavey Trice’s a p artm ent som etim e bef ore d ay light on the m orning the m u rder occurred. Once Bostic arrived, she h eard him tell Dezzon Thom as that Tray lor shot som e one seven tim es. 3
Ashanti stated that B ostic w as wearing the distinctively patterned b lue hoodie the day bef ore the i ncident. But h e was n o t wearing a hoodie when s h e s aw him af ter t he occurrence of the

m urder. 4 ¶13. Lavey , the owner of the a partm ent where Bostic, Tray lor, and D ezzon were at som e

3 S h e stated th at B o stic to ld h er th at h e w a s n o t in v o lv ed w ith th e sh o o tin g . 4 B o stic’s atto rn ey im

p each ed A sh a n ti b ecau se in h er v id eo i n terv iew a f ew d ay s af

ter th e in cid e n t sh e stated sh e d id n o t k n o w th e last tim e sh e saw B o stic w earin g t h e d istin ctiv e b lu e h o o d ie. 4point bef

ore or af ter the incident, testif

ied that Bostic was also known as “Drop.” Lavey could n ot testif

y a s t o Bostic’s whereabouts prior to the incident’s occurrence. She testif ied that about 7 a.m . she woke up to Tray lor b eating on her b a c k d o o r and a sking to speak to Bostic. L a vey f

urther testif

ied t hat Bostic was not at her hom e when she went to bed; theref ore, som eone m

ust have let Bostic in while she was asleep. ¶14. Dezzon testif

ied that he had heard people c all Bostic “Drop.” He contends he woke
up to Bostic knocking on the f ront door of Lavey ’s apartm ent. He testif ied that Bostic told him t hat T ray lor had j ust killed a w om an at the store. Dezzon’s testim ony c ontradicted with Ashanti’s testim ony with respect t o whether Bostic was at Lavey ’s house on the n ight bef ore the m urder. Dezzon’s t estim ony a lso con tradicted w ith Lavey ’ s testim ony regarding what tim e Lavey

put him and Tray lor out of

her house. 5 ¶15. K a t h r y

n R o d g e r s , t he f

orensic DNA analy st, testif i e d t h a t s h e r e c e i v e d t h e distinctively p a t t e r n e d b lue hoodie and buccal swabs f r om Bostic in order f

or her to test whether Bos t i c ’ s D N A was on the hoodie. S he l ater received buccal swabs f r om Dezzon because Tray lor i m

plicated som eone nam ed “W op” and D e z zon goes by that nam e of “Dewop.” The results revealed a n exclusion and likelihood ratio. In other words, the results
express whether a perso n i s e x c l uded or cannot be excluded to the DNA m ixture on the distinctive blue hoodie. Rodgers testif ied that 99.99 percent o f all the p e o p le in the world

were e xcluded as possible donors o f the DNA prof ile. That lef

t o nly .01 percent of the world

5 D ezzo n an d L av ey ’s testim o n y co n trad i cted as to th e tim e th at sh e g o t o f f w o rk an d th e tim e sh e a sk ed h im a n d T r a y l o r to leav e. D ezzo n testif ied t h a t L av ey p u t th em o u t aro u n d 1 0 :3 0 to 1 1 :0 0 p . m . H e testif ied th a t L av ey i n co rrectly t estif ied th at sh e ask ed h im an d T ray lo r to leav e b etw een 3 :3 0 an d 4 a.m . 5population’s DNA p rof ile that could possibly b e c ontained i n that swab. Bostic c o uld not be excluded a s a contributor of the DNA prof ile. However, Dezzon was excluded f rom being a contributor. ¶16. Tray lor testif

ied that he never said Bostic wa s w i th him when he went into Mapco. Tray lor s tated that t he of

f icers wanted h im to s ay B ostic w as with him , but he c ontends that he only said “Drop” a nd that “Drop” and “W op” are com m on nam es. 6 He stated t hat when he entered his plea he signed the statem ent on June 30 indicating that Bostic was with him

at the tim e of the incident, but he did not look over the statem ent. As a result, Tray l o r did

not agree with the st a t e me nt he signed on June 30. Tray lor testif i ed that he did not know
B o s t i c a n d never stated the n am e “Bostic” during any statem ent he m a d e. To im peac h Tray lor, the State showed the video o f h is second interview in which Tray l or conf essed to the shooting. But during the interview Tray lor stated that “Drop” was w i t h h i m a n d that “Drop’s” “governm ent nam e ” is “Micah Bostic.” Af ter watching the video of his interview, Tray lor stated that he was u nder the inf luence and had just talked with h is f a m ily , who told h im those things a

bout Bostic. Later, the State introduced the Mapco surveillanc e v i d e o . Tray lor was heard using the nam e “Drop” in t he Mapco s urveillance video. In addition, the State attem

pted to e licit t estim ony

regarding Tray lor and Bostic’s gang af f iliation with the

6 T ray l o r ref

eren ced “Wo p ” d u rin g h is testim o n y b ecau se d u rin g h is th ird i n terv iew w i th th e o f

f icers h e attem

p t ed to retract h is s tatem en t im p licatin g B o stic. T ray lo r stated t h at th e g u y th at w as w ith h im h e w en t b y th e street n am e o f “Wo p . ” T ray lo r a sserted h e d id n o t k n o w th e “M icah B o stic” th at th e o f f icers arrested

. T ray l o r g av e th e o f f i cers an ad d ress w h ere “ W o p ” co u ld b e f

o u n d

. W h en t h e o f

f icer w en t t o th at ad d ress th e o w n er stated t h at h e d id n o t k n o w a “ M icah B o stic” o r “Wo p . ” T h e o w n er stated th at h e k n ew D ezzo n T h o m as b u t h is street n am e w as “D e w o p ” as o p p o sed to “Wo p .” 6black gangster disciples. Tray lor did not conf irm these f acts. 7 ¶17. To im

peach T ray lor, the State called Steven W ilburn, t he j ailhouse adm inistrator, and of f ered letters (purporting to be f r om Tray lor to Bostic) to prove that Tray lor knew B o stic and that they

were f ellow gangsters af

f iliated with black gangster disciples. ¶18. Bostic testif

ied ( against the advice of his counsel) that on Sunday , J anuary 31, 2016, he was at Lavey ’s apartm ent at approxim ately 7 or 8 p.m . Bostic testif ied that when he lef

t, he went to Tunica w ith Alex Bostic (his little brot h e r ), Dom inique Meriwether (his girlf riend), and Brian Rutherf ord (his cousin) around 8 p.m . Bostic testif i ed that they m ade it back to Corinth at approxim ately 2 a.m . and that he went to Brian’s house to go to sleep.
He testif i ed that Alex dropped him of f at Lavey ’ s at 6 a.m . Bostic also testif i ed that the last tim e h e w ore that blue hoodie was the Friday bef ore the incident and that he lef t it in a pile at Lavey ’ s apartm ent. ¶19. At trial, Bostic insisted on calling his brother, Alex, as a witness against his a ttorney ’s advice (again). A lex testif ied that on Sunday , January 31, 2016, when he, Bostic, Brian, and
Dom inique went to Tunica, they l ef t Corinth at approxim a tely 8 p.m . Alex stated that they arrived back in C orinth a t approxim ately 1 a.m . o n Monday , February 1, 2016, and went to Country L a n e A p a rtm ents. Alex contends he took Bostic to Lavey ’s apartm ent at approxim a tely

7 a.m

. 8 ¶20. F o l l o w i n g t h e week-long trial, the j ury f ound Bostic guilty of capital mu r d e r o n

7 T h e S tate w a s try i n g to m ak e a co n n e ctio n b e tw ee n B o s t i c an d T ray lo r b ased o n B o stic’s statem e n t th at h e w as a f o rm er m em

b er o f th at g a n g . 8 U p o n cro s s - e xa m i na t i o n, A l e x t e s t i fi e d t ha t Meriw eth er d ro v e to L av ey ’s ap artm en t. 7October 10, 2017, and he was sentenced to serve a term of l if e im prisonm ent w ithout parole pursuant to Mississippi Code Annotated section 97-3-21(3) (Rev. 2014). ¶21. Aggrieved, on October 18, 2017, Bostic f iled a m oti o n fo r a j u d g m e n t notwithstanding the verdict and alternatively r equested a new trial. The circuit court d enied Bostic’s requests

on Decem

ber 1 , 2017. D espite having m ultiple issues i n his m otion, only the issue of the court’s denial of

his m otion to suppress was raised on appeal. ¶22. Bostic tim ely noticed t h is appeal. Bostic a l leges that the trial court erred by f ailing

to s uppress h is statem ents given to the police investigators b ecause he repeatedly invoked his constitutional right to c ounsel, and he say s that the of f icers n onetheless f

ailed to end the interrogation. Bostic also argues that h i s s t a t e m ents should be suppressed because the interrogation video shown during tr ial included a jailor questioning him about his gang af f iliations. STANDARD OF REVIEW ¶23. This Court will reverse a trial court’s d e n i a l of a m otion to suppress if the court’s ruling was a m anif

est error or c ontrary to the overwhelm ing w eight of the evidence. Downey

v. State , 144 So. 3d 146, 1 50 (¶6) (Miss. 2014). “The standard of review f or the suppression of evidence is abuse of d iscretion.” C hamberlin v. State , 9 89 S o. 2d 320, 336 (¶52) (Miss. 2008). DISCUSSION I. Motion to suppress ¶24. The Fif

th and Fourteenth Am endm ent prohibition against self -incrim ination requires

8that any one subject to custodial interrogation be advised that t hey h ave the right to rem ain

silent and the right to the p r e s ence of an attorney

. Balfour v. State , 598 So. 2d 731, 744 (Miss. 1 992) (citing Miranda v. Arizona , 384 U.S. 4 36, 479 (1966)). If t he subject invokes the right to rem ain silent, then the questioning m ust stop; and if t he subject requests counsel, the questioning m

ust cease until an attorney is present. Balfour , 598 So. 2d at 744.
II. Invocation of the right to an attorney ¶25. An individual m

ust specif ically invoke the right to counsel. Edwards v. Arizona , 451 U.S. 477, 4 82 (1981). The invocation d oes not have to be a ccom plished in a specif

i c m anner

or at a specif

ic stage in the p rocess. Holland v. State , 587 S o. 2d 848, 8 5 6 ( M i s s . 1 991). Regardless of whether the d ef endant’s request f

or an a tt o r ney is explicit or equivocal, the

court m ust give a broad, rather than narrow, interpretation to a def endant’s request f

or counsel. Id

. at 856. In situations where the of f icer believes the accused m a de an e quivocal

st a t e m e nt suggesting a request f or counsel, the interrogation m ay o nly continue on the narrow road to ascertain the m e aning of the equivocal statem e nt. Id

. ¶26. In the present case the o f f i c e r r e a d B o stic his Miranda rights, and the f ollowing exchange occurred: BY DETECTIVE ROGERS: Q: Do y ou wish to talk to m e about why y ou’re here at this tim e? A: Actually , I want to t ake m y m other’s advice c ause she told m e – I told her I ’m innocent, so it ain’t like m e going in there and tell they ass what I w ant to. You know, but she t old m e t o request f o r a n attorney a nd y ou know I want to– Q: W ell I m ean –

9A: I really want to, y ou know – Q: You’re a grown m an, so, y ou know, it’s up to y ou. It’s y o ur decision to m a ke. A: Yeah. I really

want – I want to take m y m other’s advice, though, so– Q: So y ou’re say ing y ou want an attorney ? A: Yes, sir. Q: (Detective Green) Micah I want y ou t o understand y ou know every one– [9]
A: Actually , y ou know I had – I’m just now being released f rom p r ison like Novem

b er 4th f rom d oing eight m andatory y ears. A ctually , that’s what I had did at f

irst. I had com m itted a crime w i t h a guy f rom Tennessee and w e robbed a cab driver. Okay

. We l l , I s a y we n ow cause I got incrim inated f or the shit and did the tim e f or it. . . . [10] ¶27. It is not required that a d e f endant use s pecif

ic language, s u ch as “I want a l awy er,” to invoke the right to couns e l

. Montoya v. Collins , 955 F .2d 279 (5th Cir. 1992). See also Downey v. State , 1 44 So. 2d 146 (Miss. 2014) (f inding Downy invoked her right to counsel by stating that she had an a ttorney and “could use him .”); Holland v. State , 587 So. 2d 848, 856-57 (Miss. 1 9 9 1 ) ( h o lding that a suspect invoked his right to c o unsel when asking detectives “Don’t y ou think I need a lawy er? ”). Only “som e kind of po s i t i v e s t a t em ent or other action that inf

orm s a reasonable person of the def endant’s desire to d eal with the police only through c ounsel” is required to assert t he right. W ilcher v. State , 697 So. 2d 1087, 1096

9 L a ter, D etectiv e G reen f in ish es h is s en ten ce an d say s, “Well, th a t ’s w h a t I w an t y o u to u n d erstan d , M icah . Y o u ’v e b een th ro u g h th is b ef o re.”

10 We u se t h e lan g u ag e an d sty le f ro m th e r eco rd p resen ted to u s an d d o n o t in sert alteratio n s reg ard in g p u n ctu atio n . 1 0(Miss. 1997) (quoting Michigan v. Jackson , 475 U.S. 625 (1986)).

¶28. Wh e n B o s t i c s tated t hat he wanted to take his m other’s advice he invoked his right

to c ounsel. The of

f icers were required to cease the interrogation. The c ircuit court f ound that there w as no police-initiated questioning af ter he invoked his right to counsel. W hen the circuit court denied Bostic’s m otion to suppress, it ruled t hat “ [ B ostic] stated he wanted an attorney , but in alm ost the sam e breath, without any questioning or prom p ting or prodding by the detectives, def

endant s tarts voluntarily , f reely and voluntarily [ sic], relating to the detectives a story about his prior arm ed robbery of a cab driver and his s e ntence in that case.” The c ircuit c ourt also said, “in short, there was no interrogation b y the police.” W e disagree. ¶29. This Court has held that an interrogat i o n c a n exist even though an o f f icer does not explicitly question one about the c o n t e n t s o f the f ile or f a cts of the case. T he “term interrogation h as not been lim ited to encom pass only express questioning by the police. In f act, the Mississippi Suprem e C o u r t h a s applied a broad interpretation to the term interrogation to include not only questioning, but rath e r q u e stioning and its f unctional equivalent.” P a n n e ll v. State , 7 So. 3d 277, 282 ( ¶12) (Miss. Ct. App. 2008) (internal quotation m arks om itted). The United States Suprem e Court h a s def i ned “f unctional equivalent” to m ean “ words or actions

. . . that the p olice should know are reasonably likely

to e licit a n incrim inating response f rom the s us p e c t

. ” I

d

. at 282-83 (¶12) ( citing Rhode Island v
. Innis , 446 U.S. 291 (1980). “The determ ination of whether the police should have known a particular practice was reasonably likely to e l icit an incrim inating response f ocuses

on the p e r ceptions of the suspect, not the i ntent of the police.” B enjamin v. State , 116 So.

1 13d 115, 122 (¶14) (Miss. 2013).

¶30. Here, the of

f icers continued to question Bostic i n a direct ef f ort to get him to retract his i nvocation of his right to an attorney

. The o f f icers ref used to accept Bostic’s response that he w anted an a ttorney

. Say ing, “[ Y]ou’re a grown m an, so it’s up t o y o u . I t ’ s y our decision to m ake.

. . ,” was the f unctional equivale n t o f interrogation because the of f icer sho u l d h a v e known that that was reasonably l ikely to e licit an incrim i nating response. Although the o f

f icer asked Bostic if he wanted and attorney and he responded “y es s ir[ ,]” the interrogation still did not cease. Detective Green continued t o try to get Bostic to talk when he stated, “Micah I w ant y ou t o u n d e rstand y ou know e v ery one.” The of f icers m ade no indication that they honored B ostic’s request. T h e cam era did n ot stop running. Neither of f icer attem pted to g et up and escort Bostic out. The interrogation did not cease. “Once an accused has invoked his r ight t o counsel, any statem ents given by the def e n dant in response
to f urt her police questioning are adm issible only where (1) the def endant initiated f

urther discussions with the police and (2) knowingly and intel ligently waived the rights he had invoked.” Pannell , 7 So. 3d at 287 (¶29) (citing Smith v. Illinois , 469 U.S. 91, 95 (1984)). Once the right to an attorney has attached, “any statem e nts obtained f rom t he accused during subsequent police-initiated custodial questioning regarding the charge at issue ( even if the accused purports to waive his rights) are inadm issible.” Showers v. State , 70 So. 3d 241, 247 (¶24) (Miss. Ct. App. 2011). Bostic neither initiated c onversation with the of f icers nor did he waive h is right to an a ttorney

. This was a police-initiated questioning. Thus, we f ind that Bostic’s s tatem ents were the product of f urther interrogation by the of f i cers and should have

1 2been suppressed because although he invoked his right t o counsel the interrogation did not

cease. III. Harm less error ¶31. T h e S t a t e argues that if t his C ourt f inds that B ostic’s Fif

th Am endm e n t r i g h t t o counsel was violated, it was harm less bey ond a reasonable doubt. W e agree. [ T]he adm ission of statem ents taken in violation of an accused’s Fif th Am endm ent rights i s “am enable to harm less error a n a l y s i s . ” “In order f or a violation of a constitutional right t o b e h e l d h a rm l ess, this Court m ust determ ine that the violation was harm less bey ond a re a s o nable doubt.” W e have held that “er rors involving a violation o f an a ccused’s constitutional rights m ay be d eem ed h arm less bey ond a reasonable doubt where the weight of the evidence against the accused is overwhelm ing.”
Hutto v
. State , 227 So. 3d 963, 980 (¶49) (Miss. 2017) (internal q uotation m arks and citations

om itted). ¶32. We f

i n d t h a t t h e a d mi s s ion of t he v ideo constituted harm less error b e y o n d a reasonable doubt because Bostic’s statem ents given to p olice were e x culpatory and

cum ulative rather than inculpatory

. During the interrogation, Bostic continuously pleaded and m a intained his innocence. Bostic never conf essed to any c rim e . During tri a l , Bostic testif i ed to the sam e alibi as he did during his interrogation. ¶33. T h e r e w a s o v e r w h e l mi n g evidence a gainst Bostic without his statem ents. T h e surveillance video of the incident was play ed f or the jury and the accom p l ice was ref

erred

to as “Drop.” The State also introduced a video of T ray l or’s second interview which Tray lor conf essed that “Micah Bostic also known a s Drop” was w ith him at the tim e of t he m urder. Although Tray lor attem

pted to retract his conf

ession im plicating Bostic, letters purported to

1 3be f

rom T ray lor to Bostic were entered into e v i d e n c e. These letters revealed that Tray lor planned to t e s t if

y in Bostic’s f

avor in a n ef

f ort to “f ree [ ] Drop” because they c ould not “look o ut [ ] f

or each o ther [ if

] both [ of them were] locked up.” Several witnesses called by the Sta t e t estif

ied that Micah Bostic was known as “Drop.” The p hy sical e vidence also supports the jury ’s verdict c onvicting Bostic. The distinctively patterned blue hoodie that the

accom plice was s een wea r i n g i n the Mapco surveillance video was recovered f rom a dum pster near the s cene o f t h e i ncident. Ashanti testif ied that Bostic was wearing that distinctive blue hoodie bef ore the incident occurred but he did not have it on when she saw him af ter the incident. 11 Rodgers, the f orensic DNA analy st, testif i ed that she received the d i stinctive blue hoodie and buccal swabs f r om Bostic. The DNA test she ran revealed th e exclusion and likelihood r atio of potenti a l c o n t ributors. The results provided that Bostic could not be excluded as a contributor of the DNA prof ile whereas 99.99 percent of all the people in t he world w ere excluded as p ossible donors. T heref ore, w e conclude t he evidence against Bostic was o verwhelm ing rendering the Fif th Am e ndm e nt violation harm less error. CONCLUSION ¶34. The c ircuit court erred w hen it denied Bostic’s m otion to suppress h i s s t a t em ents m a de during the February 3, 2016 interview. W hen Bostic invoked his right t o counsel t he of f icers did not cease the interrogation a s required b y l a w . However, we f ind the v iolation to be harm less error based on the overwhelm ing weight o f the e vidence a g a i nst Bostic. Accordingly , we af

f irm

.

11 B o stic testif

i ed to th e co n trary

. 1 4¶35. AFFIRMED.

BARNES, C.J., G REENLEE, WESTBROOKS, T INDELL, LAWRENCE AND McCARTY, JJ. , C O N CUR. CARLTON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. J. WILSON, P.J., AND C . WILSON, J., CONCUR IN PART AND IN THE RESULT WITHOUT S EPARATE WRITTEN OPINION.

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