IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-00927-COA

MICHAEL D. JACKSON A/K/A MICHAEL

JACKSON

APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/25/2018

TRIAL JUDGE: HON. LEE SORRELS COLEMAN

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: CHRISTOPHER E. KITCHENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL 

BY: ALICIA MARIE AINSWORTH

DISTRICT ATTORNEY: SCOTT WINSTON COLOM

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 01/07/2020

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. Following a jury trial, Michael Jackson was found guilty of exploitation of a minor. 

The circuit court sentenced Jackson to a term of twelve years in the custody of the

Mississippi Department of Corrections, with five years suspended and seven years to serve. 

Jackson appealed, arguing the circuit court erred in (1) failing to provide him a probable

cause hearing under Mississippi Code Annotated section 99-3-28(1)(a) (Rev. 2007); (2)

failing to suppress his confession; (3) failing to suppress evidence obtained from his home;

(4) limiting his theory of defense; (5) refusing his proposed jury instructions; (6) allowing

witness testimony that violated the rules of discovery; and (7) refusing to grant his motion
for a new trial. Finding no error, we affirm the circuit court’s judgment. 

FACTS

¶2. In 2013, Jackson was a music teacher and choir director at Columbus High School in

Columbus, Mississippi. K.B.1

attended Columbus High School but was not one ofJackson’s

students. On November 22, 2013, Jackson messaged K.B. on “Kik,” an instant messaging

application (“app”) for mobile devices. When K.B. asked, “who might this be,” Jackson

responded, “an admirer . . . I’m afraid to say [because] I’m older than [you and] I work at

CHS . . . .” K.B. tried guessing, and Jackson messaged, “Before I proceed I have to tell [you]

I’m a guy [and] I don’t know if you would [be] cool with that.” K.B. replied, “as long as you

don’t try or harass me we cool.”

¶3. A few days later, Jackson asked K.B. for his cell phone number, and they began text

messaging. Jackson asked K.B. detailed questions about his sex life and the size of his penis. 

Jackson asked K.B. how “big” he was and suggested K.B. should get paid to receive oral sex. 

Jackson then messaged, “[T]hat could be very lucrative for [you] . . . [why] not get paid to

get what [you] already getting . . . .” K.B. responded, “[I don’t know] money talks though.” 

¶4. Jackson offered K.B. $50 to give K.B. oral sex. K.B. said that was too cheap. 

Jackson then offered $100, and K.B. replied, “I [was] looking forward to a Salvatore

Ferragamo belt.” Jackson then offered $275. K.B. agreed. 

¶5. They went back and forth on meeting times. On December 7, 2013, they attempted

1

 We use initials to protect the minor’s identity. 

2
to meet in a gas station bathroom, but Jackson backed out upon arrival, claiming there was

too much activity at the gas station. He was also worried about the cameras on the outside

of the gas station. Jackson asked K.B. to follow him to his house, but K.B. said he could not

because his mother called and needed a ride.

¶6. K.B.’s last message to Jackson was on December 16, 2013. He said the hall “was

talking,” implying that other students knew about what was going on between them. At the

end of January, K.B. told his mother about the messages. On January 31, 2014, they went

to the police station and met with Investigator Tabertha Hardin. K.B. told Investigator

Hardin about the messages between himself and Jackson and showed her the messages on

his phone. Jackson was arrested two days later. Investigator Hardin prepared a search

warrant for Jackson’s home and cell phone, which the police seized the following day. The

police also seized two computers, four phones, two tablets, three hard drives, and three jump

drives. A forensic analysis of Jackson’s phone showed the text messages between Jackson

and K.B., including some deleted messages.2 

¶7. On February 3, 2014, around 12 p.m., Investigator Timothy Jenkins met with Jackson. 

Jackson immediately requested a lawyer. Investigator Jenkins read Jackson his Miranda3

rights, and Jackson signed a waiver. At that point, the interrogation ceased, and Investigator

Jenkins left. 

2 The initial forensic analysis did not reveal any text messages between Jackson and

K.B. Later, with advanced technology, the messages were recovered. 

3

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

3
¶8. A few hours later, it is undisputed that Jackson requested to speak again with

Investigator Jenkins. The following exchange occurred:

Inv. Jenkins: You requested to speak to me, is that right?

Jackson: Uh huh.

Inv. Jenkins: Again, I’m Investigator Jenkins, that’s Investigator McCrary.

Before we get started talking, earlier today when we started the

interview, I read your rights to you correct?

Jackson: Uh huh.

Inv. Jenkins: I need a yes or no . . . 

Jackson: Yes.

Inv. Jenkins: And at that time, you requested to speak with a lawyer, is that

correct?

Jackson: Yes.

Inv. Jenkins: Now, you are willing to waive that right and speak to me again?

Jackson: I want to tell you about the situation.

Inv. Jenkins: Look, before that, I can’t listen to anything like that, you see

what I’m saying, to cover myself.

Jackson: Okay.

Inv. Jenkins: I need to read you your [rights] again and if you want to talk to

me after that, we can do that okay[?]

Jackson: Okay. I would just rather wait until I consult with a lawyer.

Inv. Jenkins: Okay, that’s fine. Um since we are in here, I do have to read

your rights again, and then we will go through the whole you

want to speak to a lawyer, okay?

4
Jackson: Okay.

Inv. Jenkins: I understand what you want to talk to me about but like I said to

cover me, cover the department and the city, I have to go

through the steps; do you know what I mean?

Jackson: Yes sir.

. . . . 

Inv. Jenkins: Like I said, we can talk about what you want to talk about, that’s

fine, but I have to go through all this.

Jackson: Okay.

. . . .

Inv. Jenkins: Okay. We are at the Columbus Police Department. Today’s date

is Monday, February 3rd. The time now is 3:23 p.m. Alright,

just like before . . . (Read rights) Do you understand these

rights?

Jackson: Yes.

Inv. Jenkins: (Read waiver of rights) Now, do you want to talk to me about

what you requested to talk to me about?

Jackson: Yes.

Inv. Jenkins: If you would, sign right there. Officer McCrary is going to step

out so you and I can talk okay?

Jackson: Okay.

Inv. Jenkins: You understand what you have been charged with, right?

Jackson: Yes sir.

Inv. Jenkins: You requested to speak with me, is that right?

5
Jackson: Yes sir.

Inv. Jenkins: Okay, what would you like to talk to me about?

(Emphasis added). Jackson signed a second Miranda waiver and confessed to offering K.B.

$275 to receive oral sex from him. 

¶9. Jackson was indicted pursuant to Mississippi Code Annotated section 97-5-33(6)

(Supp. 2013). On April 29, 2015, Jackson filed a motion to suppress, claiming that he was

denied a probable cause hearing under Mississippi Code Annotated section 99-3-28(1)(a). 

As a result, he requested that any statements given to the Columbus Police Department and

any evidence seized in connection with those statements be suppressed. 

¶10. The circuit court subsequently held a hearing on the motion to suppress and heard

testimony from Jackson and Investigators Hardin and Jenkins.4Jackson testified that he

asked to speak with Investigator Jenkins a second time because he “just really wanted to find

out what was going on.” At the close of the hearing, the circuit court continued the hearing

and requested that the parties provide briefing on the motion to suppress—specifically,

whether or not the probable cause hearing of section 99-3-28(1)(a) was applicable. Both

parties complied and presented their arguments at the second hearing. The circuit court

ultimately held that the mere fact that the student knew Jackson and that Jackson was a

4 On January 20, 2015, Jackson filed a motion to quash the indictment, arguing that

it was “unconstitutionally over broad.” The circuit court also heard this motion at the

hearing and ultimately denied the motion. The constitutionality of the indictment was not

raised as an issue on appeal. 

6
teacher at his school did not invoke the use of section 99-3-28(1)(a). At no point in the

motion to suppress or during the hearing did Jackson’s attorney allege the statement should

be suppressed due to a violation of his invocation to an attorney. Jackson’s argument

stemmed solely from the alleged statutorily-required probable cause hearing. 

¶11. The case was tried on May 21 through May 25, 2018. At trial, the jury heard

testimony from K.B. He testified that he first met Jackson leaving school early one day. 

K.B. stated that Jackson asked him his name and age. The two later crossed paths again

when K.B. was in the school play. K.B. was waiting for his ride after rehearsal, and Jackson

asked him about his behavior at school and what kind of student he was. Their next

interaction was through the “Kik” app on November 22, 2013. K.B. testified in detail to the

instant messages and text messages between himself and Jackson, stating that Jackson

offered him up to $275 to receive oral sex. 

¶12. Investigator Jenkins testified that he initially read Jackson his Miranda rights and

handed him a waiver form. He also testified that he goes through the waiver form with every

detainee even if he or she has requested a lawyer. After Jackson invoked his right to an

attorney, Investigator Jenkins wrote “requested lawyer” at the bottom of the form, had

Jackson sign it, and left. He stated that Jackson asked to speak to him three and a half hours

later, so he went back into the room where Jackson was being held. He testified that he

provided Jackson with a second waiver form. The video of the second interview between

Investigator Jenkins and Jackson was played for the jury. The defense did not object when

7
the video was offered into evidence or when the video was played for the jury. The defense

only objected after the jury watched the entire video.5 

¶13. Sedrick Fenster also testified for the State. Fenster, a bail bondsmen, testified he had

been friends with Jackson since the early 2000s. Over the years, Fenster was the sound

technician for Jackson’s school concerts and plays. He stated that in February 2014 he had

been trying to call Jackson because he knew Jackson had an event happening soon. When

Jackson finally called him back, he asked Fenster if he knew he had been arrested. Fenster

said, “[N]o,” and Jackson asked him to come over to his house. Fenster testified that, after

he arrived at Jackson’s home, Jackson admitted he had offered money to a student to receive

oral sex. 

¶14. The defense called Investigator Hardin as its only witness. She testified that K.B. and

his mother came to the police department to report an incident where K.B. was getting

messages from a teacher at Columbus High School. Investigator Hardin then testified that

she took screen shots of K.B.’s messages on his phone and then sent those screen shots to her

computer. 

¶15. At the close of Investigator Hardin’s testimony, the defense rested. The jury found

Jackson guilty of exploitation of a minor. Jackson appeals. 

ANALYSIS

5 The actual objection and its analysis will be addressed fully in part two of this

opinion’s analysis section.

8
1. Mississippi Code Annotated section 99-3-28 does not apply. 

¶16. Jackson claims he was entitled to a probable cause hearing as a licensed public school

teacher under section 99-3-28(1)(a). We review issues of statutory construction de novo. 

Smith v. Webster, 233 So. 3d 242, 247 (¶15) (Miss. 2017). “In matters concerning statutory

construction, ‘the function of the Court is not to decide what a statute should provide, but to

determine what it does provide.’” Id. at (¶16) (quoting Lawson v. Honeywell Int’l Inc., 75

So. 3d 1024, 1027 (¶7) (Miss. 2011). “When a statute is unambiguous, [we apply] the plain

meaning of its words.” Id. 

¶17. Section 99-3-28(1)(a) provides, in relevant part:

Except as provided in subsection (2) of this section, before an arrest warrant

shall be issued against any teacher who is a licensed public school employee

as defined in Section 37-9-1 . . . for a criminal act, whether misdemeanor or

felony, which is alleged to have occurred while the teacher . . . was in the

performance of official duties, a probable cause hearing shall be held before

a circuit court judge.

(Emphasis added). 

¶18. The plain language of the statute mandates a probable cause hearing before an arrest

warrant is issued against a licensed public school teacher if engaged in a criminal act while

in the performance of his official duties. K.B. was not Jackson’s student. Jackson happened

to work at the same school K.B. attended. Jackson never taught K.B. Jackson never

supervised K.B. In fact, all of the alleged criminal activities by Jackson against K.B.

occurred off campus, outside of school hours. Consequently, Jackson cannot avail himself

of the procedures provided in this section. 

9
2. The circuit court properly admitted Jackson’s confession.

¶19. Jackson argues that the circuit court erred in refusing to suppress his confession

because he had invoked his right to counsel. “Whether a confession is admissible is a

fact-finding function for the trial court, and its decision will not be overturned unless the trial

court applied an incorrect legal standard, committed manifest error, or made a decision

against the overwhelming weight of the evidence.” Haynes v. State, 934 So. 2d 983, 988

(¶15) (Miss. 2006).

¶20. Jackson first argued for the suppression of the confession in his motion to suppress. 

However, as previouslymentioned, Jackson did not argue a violation of his Fifth Amendment

rights.6 He instead argued that any confession obtained should be suppressed because he was

denied a probable cause hearing. That issue was addressed in the first motions hearing. The

court continued the hearing and reserved its ruling until the issue was briefed. During the

second motions hearing, Jackson’s attorney argued that the confession should have been

suppressed because he did not receive an initial appearance within a reasonable time. The

court denied the motion to suppress. At trial, without further objections, Investigator Jenkins

testified, and the jury viewed the interview in question. After the confession was played for

the jury, Jackson objected, claiming the confession was obtained in violation of his Fifth

Amendment rights. 

¶21. An objection to evidence “must be made as soon as it appears that the evidence is

6

 U.S. Const. amend. V.

10
objectionable, or as soon as it could reasonably have been known to the objecting party . . . .”

McGuire v. State, 170 So. 3d 570, 576 (¶14) (Miss. Ct. App. 2014) (quoting Sumner v. State,

316 So. 2d 926, 927 (Miss. 1975)). Here, Jackson had access to the video and transcript

years before trial.7 As previously stated, Jackson never raised this issue in his motion to

suppress and never made any arguments on the issue at either hearing on that motion. 

Further, at trial, when Investigator Jenkins was asked to testify and the video transcript was

offered into evidence, Jackson again made no objection. The day after the entire video was

played for the jury, defense counsel objected, stating, “[W]hen I watched the video yesterday,

I noticed [for the first time] very clearly in the statement where they were talking to him,

[that Jackson] invoked his Fifth Amendment right.” This was done after the evidence was

introduced and played to the jury. Further, this objection was made after the filing of a

written motion to suppress and the two hearings thereon, none of which raised this issue. 

Consequently, we find Jackson waived his argument of a Fifth Amendment violation and did

not preserve this issue for appeal. 

¶22. Waiver notwithstanding, the circuit court did not err in admitting Jackson’s

confession. Jackson invoked his right to counsel during the first interview. When a suspect

invokes his right to counsel, all custodial interrogation must cease until the lawyer is present,

7 Defense counsel filed a motion for discovery on August 22, 2014. The defense then

provided a notice of reciprocal discovery to the State on May 18, 2015. Although the record

does not reveal the exact date Jackson received discovery from the State, it is obvious he

received it before he provided reciprocal discovery. 

11
unlessthe suspect himself “initiatesfurther communication, exchanges, or conversations with

the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).8 The first interrogation did

cease. It is undisputed Jackson initiated further communication with Investigator Jenkins,

prompting the second interview. At the beginning of the second interview, the following

exchange occurred:

Jackson: I want to tell you about the situation.

Inv. Jenkins: Look, before that, I can’t listen to anything like that, you see

what I’m saying, to cover myself.

Jackson: Okay.

Inv. Jenkins: I need to read you your [rights] again and if you want to talk to

me after that, we can do that okay[?]

Jackson: Okay. I would just rather wait until I consult with a lawyer.

Inv. Jenkins: Okay, that’s fine. Um since we are in here, I do have to read

your rights again, and then we will go through the whole you

want to speak to a lawyer, okay?

Investigator Jenkins read Jackson his Miranda rights, and Jackson signed a second waiver

form. The two began talking, and Jackson ultimately confessed. 

¶23. First, we must determine whether Jackson invoked his right to counsel. See Holland

v. State, 587 So. 2d 848, 855 (Miss. 1991). “Due to the fact-specific nature of requests for

8 The Fifth Amendment right to counsel, as incorporated to apply to the states,

attaches during custodial interrogations. See Collins v. State, 172 So. 3d 724, 736 (¶9)

(Miss. 2015), distinguished on other grounds by Manning v. State, 269 So. 3d 216, 220

(¶16) (Miss. Ct. App. 2018). 

12
counsel and Miranda waivers, the applicable law has become muddled. Accordingly, we

review such requests on a case-by-case basis.” Downey v. State, 144 So. 3d 146, 150 (¶7)

(Miss. 2014).

¶24. A person does not have to use specific language such as “I want a lawyer” in order

to invoke the right to counsel. Montoya v. Collins, 955 F.2d 279, 283 (5th Cir.1992). Only

“some kind of positive statement or other action that informs a reasonable person of the

defendant’s ‘desire to deal with the police only through counsel’” is required to assert the

right. Wilcher v. State, 697 So. 2d 1087, 1096 (Miss. 1997) (quoting Montoya, 955 F. 2d at

283 (quoting Michigan v. Jackson, 475 U.S. 625, 626 (1986), overruled on other grounds by

Montejoy v. Louisiana, 556 U.S. 778,780-81, 797 (2009))).9

¶25. “When there is ambiguityin the request for counsel, this Court applies a three-step test

to determine whether the trial judge correctly decided whether to admit or suppress a

defendant’s statements to a law enforcement officer.” Downey, 144 So. 3d at 151 (¶18) 

(citing Holland, 587 So. 2d 848). “In applying this test, we consider (1) whether counsel was

ambiguously requested; (2) if the request for counsel was ambiguous, whether the

appropriate questions to identify the counsel requested were asked; and (3) if the

9 The Mississippi Supreme Court has said that “an ambiguous mention of possibly

speaking to one’s attorney is insufficient to trigger the right to counsel.” Grayson v. State,

806 So. 2d 241, 247 (¶11) (Miss. 2001) (citing Davis v. United States, 512 U.S. 452, 459

(1994)). A mere suggestion or misunderstanding is not enough. See id. “A suspect must

articulate his or her desire to have counsel present with sufficient clarity that a reasonable

police officer under the circumstances would understand the statement to be a request for

an attorney.” Delashmit v. State, 991 So. 2d 1215, 1220 (¶14) (Miss. 2008).

13
interrogation continued without counsel, whether there was a valid Miranda waiver.” Id.

¶26. We recognize that this case presents a unique set of facts. Jackson initially invoked

his right to counsel, but several hours later he initiated further communication. After

Investigator Jenkins returned, Jackson said he wanted to talk about the “situation.” 

Investigator Jenkins attempted to re-read Jackson his Miranda rights, and Jackson stated he

would rather wait to consult a lawyer. Those two statements are conspicuously in conflict

with each other. Further, those two statements came after Jackson requested and initiated 

the new contact with law enforcement. It would be an understatement of perplexing

proportions to assert the officers were not confused and unclear as to whether he wanted to

talk or not. Investigator Jenkins then retreated to the safe harbor of reading the Miranda

rights to see if the confusion could be cleared. After Jackson was read his rights, he agreed

to speak with law enforcement. 

¶27. A law enforcement officer cannot question the accused10 about his criminal conduct

after he invokes his right to counsel. Kirkland v. State, 559 So. 2d 1046, 1047 (Miss. 1990).

However, the officer is permitted to inquire about counsel for clarification purposes.

Kuykendall v. State, 585 So. 2d 773, 777 (Miss. 1991); see also Holland, 587 So. 2d at 858

(holding the interrogator’s line of questioning must not exceed the limits of permissible

clarification). After Jackson stated he would rather wait to consult a lawyer, Investigator

10 See U.S. Const. amend. VI; Miss. Const. art. 3, §26; Page v. State, 495 So. 2d 436,

439 (Miss. 1986). 

14
Jenkins was permitted to seek clarification. Investigator Jenkins did not question Jackson

about his criminal conduct. He only stated that he needed to re-read Jackson his Miranda

rights before listening to anything Jackson had to say about the “situation.” He also informed

Jackson that they could talk about whether Jackson wanted a lawyer after he was read his

Miranda rights. At that point, Jackson was read his Miranda rights for a second time and

signed a second waiver form. Investigator Jenkins then asked Jackson what he wanted to talk

about, and Jackson told Investigator Jenkins what he obviously wanted to say. 

¶28. After applying the three-step test set forth in Holland, we find the circuit court

properly admitted Jackson’s confession. Jackson initiated further communication with

Investigator Jenkins and then stated he wanted a lawyer. Confused because Jackson had

requested to speak with him a second time to talk about “the situation,” Investigator Jenkins

sought to clarify Jackson’s request by reading him his Miranda rights. After Jackson was

read his rights, Jackson voluntarily waived his rights and spoke to Investigator Jenkins. 

¶29. As stated previously, Jackson did not object as to the invocation issue until after the

confession was played in its entirety to the jury. The separate opinion does not address the

waiver issue. Rather, the separate opinion argues that our holding that Investigator Jenkins’

permissive clarification “erode[s] constitutional principles” concerning the invocation of the

right to counsel.

¶30. The ruling in this case is directly determined by the unique facts of this case. Jackson

invoked his rights in the first interview. The detectives respected that invocation and left. 

15
A few hours later, Jackson clearly reinitiated contact with the detectives. When the detective

re-entered the room,Jackson affirmed that he had asked the detectives to return. He then told

the detective, “I want to tell you about the situation.” Then, almost immediately after making

that statement, Jackson stated, “I would just rather wait until I consult with a lawyer.” This

statement was different from his previous statements asking the detectives to return and to

“tell [them] about the situation.” Simply put, Jackson’s conflicting statements made within

seconds of each other, coupled with the fact that he had reinitiated the entire second

conversation, created a confusing and ambiguous situation. Investigator Jenkins responded

by reading Jackson his Miranda rights again. After the Miranda warnings were read,

Jackson waived his rights and began speaking with the detectives. We find Investigator

Jenkins’s attempt to clarify the situation by reading Jackson his constitutionally required

Miranda rights was not a violation of Jackson’s Fifth Amendment rights. See Kuykendall,

585 So. 2d at 777; see also Holland, 587 So. 2d at 858. 

¶31. Further, even ifthe circuit court had erred in admitting Jackson’s confession, the error

would be harmless.

[T]he admission of statements taken in violation of an accused’s Fifth

Amendment rights is “amenable to harmless error analysis.” “In order for a

violation of a constitutional right to be held harmless, this Court must

determine that the violation was harmless beyond a reasonable doubt.” We

have held that “errors involving a violation of an accused’s constitutional

rights may be deemed harmless beyond a reasonable doubt where the weight

of the evidence against the accused is overwhelming.”

Hutto v. State, 227 So. 3d 963, 980 (¶49) (Miss. 2017) (citations omitted). 

16
¶32. Here, the weight of evidence against Jackson is overwhelming without his confession. 

K.B. testified that Jackson offered him $275 to receive oral sex from him. The text messages

between Jackson and K.B. corroborating that offer were admitted into evidence before the

jury. Finally, Fenster, Jackson’s longtime friend, testified that Jackson admitted to him that

he (Jackson) had offered a student money for oral sex. Accordingly, even if there was a Fifth

Amendment violation, it was harmless error beyond a reasonable doubt. 

3. The circuit court did not err in refusing to suppress evidence

obtained from Jackson’s home.

¶33. Jackson contends that any items seized from his home were acquired from an

unlawfully obtained confession and therefore “fruit of the poisonous tree.” As a result, he

argues that the circuit court should have suppressed all evidence collected there.

¶34. We review the circuit court’s denial of a motion to suppress evidence for abuse of

discretion. Goff v. State, 14 So. 3d 625, 641 (¶47) (Miss. 2009). We will not disturb the

circuit court’s decision unless we find the circuit court “applied an incorrect legal standard,

committed manifest error, or made a decision contrary to the overwhelming weight of the

evidence.” Simmons v. State, 805 So. 2d 452, 482 (¶64) (Miss. 2001) (quoting Taylor v.

State, 733 So. 2d 251, 255 (¶18) (Miss. 1999)). 

¶35. The exclusionaryprohibition against “fruit ofthe poisonous tree” applies to violations

of the Fifth Amendment privilege against self-incrimination. See Brown v. Illinois, 422 U.S.

590, 599-601 (1975). Our supreme court has held “that the fruit of the poisonous tree

doctrine is defeated where the confession is judged admissible.” Yates v. State, 467 So. 2d

17
884, 887 (Miss. 1984) (citing Wiley v. State, 449 So. 2d 756, 759-60 (Miss. 1984)).

¶36. As previously discussed, we find that Jackson’s confession was admissible. 

Therefore, any items seized as a result would not be “fruit of the poisonous tree.” However,

even if that were not the case, the search warrant clearly indicated that the underlying facts

and circumstances derived solely from the minor victim’s statement and the evidence that

was evident on his phone. Investigator Hardin also testified to that effect at the first hearing

on the motion to suppress. Thus, the police would have discovered that information without

Jackson’s statement. It was inevitable. The minor gave a statement to the police about

Jackson’s actions. During that statement, K.B. showed the police the text messages on his

cell phone, corroborating his account to the police. Simply put, the police were going to seek

a search warrant for Jackson’s home whether or not Jackson gave a statement. For these

reasons, the circuit court did not abuse its discretion in denying Jackson’s motion to suppress.

4. The circuit court did not abuse its discretion in limiting Jackson’s

theory of defense regarding consent and extortion.

¶37. Jackson next argues that the circuit court erred in denying him an opportunity on

cross-examination to present evidence showing K.B.’s consent to oral sex and his extortion

of Jackson. “Limitations placed on cross-examination are reviewed using an abuse-ofdiscretion standard.” Ervin v. State, 136 So. 3d 1053, 1058 (¶13) (Miss. 2014). 

¶38. During K.B.’s cross-examination, Jackson attempted to introduce vulgar song lyrics

from songs he learned about from K.B. Jackson argued that the lyrics went to K.B.’s

credibility and whether he was enticed to engage in the offered sexual activity. The State

18
argued that consent is not a defense to child exploitation. The circuit court stated, “[I]f the

defense wishes to portray the alleged victim in this case, a child, as a money-seeking

individual, I think he can do that, but I’m not going to allow it through the use of these songs

. . . .” Ultimately, the circuit court ruled that the evidence was irrelevant and that even if it

were relevant it was more prejudicial than probative. We agree.

¶39. Jackson’s attempt to introduce graphic, vulgar song lyrics as a defense to exploitation

of a minor is misguided and disingenuous. The law is clear: adults are prohibited from

enticing minors to engage in sexually explicit conduct. A defendant cannot solicit sex with

a minor and then claim as a defense that the minor wanted to have sex. The law does not

afford such a defense. Be that as it may, the lyrics in the songs Jackson wanted to introduce

did not prove what he asserted they did. 

¶40. Further, Jackson also claimed that K.B. sent him a blackmail letter.11 On crossexamination, Jackson tried to question Investigator Jenkins and Fenster about the blackmail

letter, but the State objected. The circuit court prohibited the questioning, reasoning that any

evidence of extortion was not a defense to child exploitation and therefore irrelevant. 

Further, there was no evidence a blackmail letter ever existed. Finally, the information about

the blackmail letter inadvertently came into evidence during Jackson’s statement to the

police. Therefore, although it was irrelevant, the jury heard Jackson’s extortion claim when

it watched his confession. 

11 No blackmail letter was ever recovered. 

19
¶41. After review, we find the circuit court did not abuse its discretion in excluding

Jackson’s proposed song lyrics and evidence of extortion. As recognized by the circuit

judge, consent and extortion are not defenses to child exploitation.

5. The circuit court did not abuse its discretion in refusing Jackson’s

proposed jury instructions.

¶42. “Jury instructions are generally within the discretion of the trial court and the settled

standard of review is abuse of discretion.” Bailey v. State, 78 So. 3d 308, 315 (¶20) (Miss.

2012) (citing Newell v. State, 49 So. 3d 66, 73 (¶20) (Miss. 2010)). “The instructions are to

be read together as a whole, with no one instruction to be read alone or taken out of context.” 

Id. (quoting Young v. State, 891 So. 2d 813, 819 (¶16) (Miss. 2005)). “When read together,

if the jury instructions fairly state the law of the case and create no injustice, then no

reversible error will be found.” Id. (citing Newell, 49 So. 3d at 73 (¶20)). Our supreme court

“has held that ‘a defendant is entitled to have jury instructions given which present his theory

of the case; however, this entitlement is limited in that the court may refuse an instruction

which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without

foundation in the evidence.’” Id. (quoting Hearn v. State, 3 So. 3d 722, 738 (¶45) (Miss.

2008)).

¶43. Jackson contends the circuit court erred in refusing to give jury instruction D-2

regarding computer luring. Jury instruction D-2 read: 

If you find that the State did not prove any one of the elements of the crime

charged, then you must find Michael D. Jackson not guilty of that crime. You

may then proceed with your deliberations to decide whether the State has

20
proved beyond a reasonable doubt all of the elements of the lesser crime of

Computer Luring.

Therefore, if you find beyond a reasonable doubt from the evidence in this

case that Michael D. Jackson did:

1. On or about or between November 22, 2013 through December 16,

2013, in Lowndes County Mississippi;

2. Knowingly and intentionally use any computer communication system

allowing the input, output, examination or transfer of computer data or

computer programs from one (1) computer to another, to initiate or

engage in such communication with a person under the age of eighteen

(18); and

3. By means of such communication he importunes, invites or induces a

person under the age of eighteen (18) years to engage in sexual

intercourse, deviant sexual intercourse or sexual contact with him, or

to engage in sexual performance, obscene sexual performance or sexual

conduct for his benefit then you shall find Michael D. Jackson guilty of

the lesser offense of Computer Luring.

If the State did not prove any one of the above listed elements beyond a

reasonable doubt, then you shall find Michael D. Jackson not guilty of

Computer Luring. 

The court refused instruction D-2 because the elements of computer luring and exploitation

of a child are practically identical, and therefore the jury could not find Jackson guilty of both

the lesser offense, computer luring, and the more serious offense of exploitation of a child.

¶44. Mississippi Code Annotated section 97-5-27(3)(a) (Supp. 2013) lists the elements of

computer luring:

A person is guilty of computer luring when:

(I) Knowing the character and content of any communication of sexually

oriented material, he intentionally uses any computer communication system

21
allowing the input, output, examination or transfer of computer data or

computer programs from one (1) computer to another, to initiate or engage in

such communication with a person under the age of eighteen (18); and

(ii) By means of such communication he importunes, invites or induces a

person under the age of eighteen (18) years to engage in sexual intercourse,

deviant sexual intercourse or sexual contact with him, or to engage in a sexual

performance, obscene sexual performance or sexual conduct for his benefit.

¶45. Jackson was indicted pursuant to Mississippi Code Annotated section 97-5-33(6),

which reads:

No person shall, by any means including computer, knowingly entice, induce,

persuade, seduce, solicit, advise, coerce, or order a child to meet with the

defendant or any other person for the purpose of engaging in sexually explicit

conduct.

¶46. We agree with the circuit court’s finding that the elements of both crimes are

practically identical and that Jackson cannot be found guilty of both the lesser offense of

computer luring and exploitation of a child. Further, no reasonable juror could find Jackson

not guilty of exploitation and then under the same proof and same elements find him guilty

of computer luring. See Rowland v. State, 531 So. 2d 627, 631-32 (Miss. 1988) (stating that

it is “extremely unlikely” for an accused to be guilty of the greater offense without also being

guilty of the lesser offense)). The grand jury indicted Jackson for exploitation of a minor,

and he was either guilty or not guilty of that crime. 

¶47. Jackson next argues that the circuit court erred in denying jury instruction D-4, a

lesser-included-offense instruction on obscene electronic communications. Jury instruction

D-4 read:

22
If you find that the State did not prove any one of the elements of the crime

charged, then you must find Michael D. Jackson not guilty of that crime. You

may then proceed with your deliberations to decide whether the State has

proved beyond a reasonable doubt all of the elements of the lesser crime of

obscene electronic communications.

Therefore, if you find beyond a reasonable doubt from the evidence in this

case that Michael D. Jackson did:

1. On or about or between November 22, 2013 through December 16,

2013, in Lowndes County, Mississippi;

2. Unlawfully make a comment, request, suggestion or proposal;

3. By means of telecommunication, or electronic communication;

4. Which is obscene, lewd or lascivious;

5. With intent to abuse, threaten or harass any party to a telephone

conversation, telecommunication or electronic communication, then

you shall find Michael D. Jackson guilty of obscene electronic

communications.

If the State did not prove any one of the above listed elements beyond a

reasonable doubt, then you shall find Michael D. Jackson not guilty of obscene

electronic communications.

¶48. The circuit court refused the instruction because there was no evidence presented that

Jackson intended to “abuse, threaten, or harass.” A circuit court may refuse a jury instruction

if there is no evidence to support it. Hye v. State, 162 So. 3d 750, 753 (¶5) (Miss. 2015). 

After review of the record, we find no evidence showing that Jackson intended to abuse,

threaten, or harass K.B. Thus, the circuit court was within its discretion to refuse jury

instruction D-4. 

6. The circuit court did not abuse its discretion in allowing Fenster’s

23
testimony.

¶49. On appeal, Jackson challenges the circuit court’s admission of Fenster’s testimony,

claiming he was prejudiced as a result. At trial, the defense objected to Fenster testifying

because Fenster was not provided as a witness in the original discovery. The State replied

that it provided the defense a copy of Fenster’s statement as soon as it was discovered in the

file—about ten days before trial. Jackson made no effort to show how or why ten days was

an insufficient period of time to prepare for such evidence. 

¶50. Nevertheless, “[t]he standard of review for the trial court’s ruling on a discovery

violation is abuse of discretion.” O’Neal v. State, 977 So. 2d 1252, 1254 (¶10) (Miss. Ct.

App. 2008). Mississippi Rule ofCriminal Procedure 17.9(b) outlines the procedures to apply

when the State attempts to enter previously undisclosed evidence over the defendant’s

objection: 

If, during the course of trial, the prosecution attempts to introduce evidence

which has not been timely disclosed to the defense as required by these Rules

and the defense objects to the introduction for that reason, the court shall:

(1) Grant the defense a reasonable opportunity to interview the newly

discovered witness and/or examine the newly produced documents,

photographs or other evidence. 

(2) If, after such opportunity, the defense claims unfair surprise or undue

prejudice and seeks a continuance or mistrial, the court shall, in the

interest of justice and absent unusual circumstances, exclude the

evidence, grant a continuance for a period of time reasonably necessary

for the defense to meet the non-disclosed evidence, or grant a

mistrial. . . . 

¶51. The circuit court complied with subsection 1, allowing Jackson as much time as he

24
needed to interview Fenster. After the interview, Jackson made no other objections

regarding Fenster as a witness. Nor did he motion for a mistrial or motion to continue. 

Because Jackson did not claim he needed additional time or that was prejudiced after his

opportunity to interview Fenster, he is barred from doing so on appeal. See Cole v. State, 525

So. 2d 365, 368 (Miss. 1987).

7. The circuit court did not abuse its discretion in denying Jackson’s

motion for a new trial.

¶52. Jackson argues that the circuit court erred in denying his motion for a new trial. A

motion for a new trial challenges the weight of the evidence. Daniels v. State, 107 So. 3d

961, 963 (¶12) (Miss. 2013). We review the circuit court’s denial of a motion for a new trial

for abuse of discretion. Id. “Our role as appellate court is to view the evidence in the light

most favorable to the verdict and disturb the verdict only when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Little v. State, 233 So. 3d 288, 289 (¶1) (Miss. 2017).

¶53. Jackson argues the jury considered screen shots that were “manipulated” by K.B., as

evidenced by testimony indicating that portions of the conversation were missing from the

screen shots.12 First, Jackson presented no proof that K.B. manipulated the screen shots by

deleting some of his and K.B.’s messages. Second, and more important, it does not matter

whether K.B. deleted any messages. What matters are the undeleted messages from Jackson

12 The texts deleted stated, “wake up,” “oh,” “?,” “um,” and “it’s the best time to do

it.”

25
to K.B., offering K.B. up to $275 to receive oral sex. Those messages clearly show that

Jackson was in violation of Mississippi Code Annotated section 97-5-33(6). 

¶54. When viewing all the evidence in the light most favorable to the verdict, including

K.B.’s testimony, the text messages, and Jackson’s confession, the verdict against Jackson

does not sanction an unconscionable injustice. Accordingly, the circuit court did not abuse

its discretion in denying Jackson’s motion for new trial. 

CONCLUSION

¶55. We find that Jackson was not entitled to a probable cause hearing under Mississippi

Code Annotated section 99-3-28(1)(a). We also find that the circuit court did not err in

admitting into evidence Jackson’s confession and evidence obtained fromhis home. Further,

we find the circuit court did not abuse its discretion in excluding from evidence Jackson’s

vulgar song lyrics and any evidence of extortion. The circuit court did not abuse its discretion

in refusing Jackson’s proposed juryinstructions. Nor did the circuit court abuse its discretion

in allowing Fenster to testify. Finally, the circuit court did not err in denying Jackson’s

motion for a new trial. Accordingly, we affirm the circuit court’s judgment. 

¶56. AFFIRMED.

CARLTONANDJ.WILSON,P.JJ.,GREENLEE,TINDELLANDC.WILSON,

JJ., CONCUR. BARNES, C.J., CONCURS IN RESULT ONLY WITHOUT

SEPARATE WRITTEN OPINION. McDONALD AND McCARTY, JJ.,CONCURIN

PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.

WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITH

SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J., AND McDONALD,

J.; McCARTY, J., JOINS IN PART.

26
WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶57. I agree that the weight of the evidence against Jackson is solidly overwhelming, and

in keeping with our Court’s holding in Bostic v. State, 282 So. 3d 423, 431 (¶31) (Miss. Ct.

App. 2019), which cites the Supreme Court’s holding in Hutto v. State, 227 So. 3d 963, 980

(¶49) (Miss. 2017), that the violation of a constitutional right may be harmless error, I concur

in part. While I am bound to follow that settled holding in our State law, I cannot further

erode constitutional principles and agree that an accused’s invoking his right to counsel is

ambiguous subsequent to him inviting questioning by law enforcement. In the face of a clear

assertion, that is not the law. Therefore, I can not agree that Jackson’s statement that “I

would just rather wait until I consult with a lawyer” was ambiguous, leaving the trained

officers confused and unclear about whether he wanted the assistance of counsel. Jackson

clearly and unambiguously invoked his constitutional right to counsel. This is where I depart

from the majority’s opinion and write separately. 

FACTS AND PROCEDURAL HISTORY

¶58. To avoid repetition, I will reiterate the relevant excerpts of the interrogation transcript

for emphasis:

I, Michael Jackson, make the following statement to Inv. Timothy Jenkins,

Whom I know to be Police Officers of the Columbus, Mississippi, Police

Department. I have been advised that I do not have to make a statement and,

if I do, anything I say can be used against me in a court of law. I have been

advised that I am entitled to legal counsel before making any statements.

Having been so advised and not being threatened in any way or promised any

rewards or leniency that would entice me to make a statement, I do make the

following statement free and voluntarily:

27
Jenkins: You requested to speak to me, is that right?

Jackson: Uh huh.

Jenkins: Again, I’m Investigator Jenkins, that’s Investigator McCrary.

Before we get started talking, earlier today when we started the

interview, I read your rights to you correct?

* * * * *

Jenkins: Now, you are willing to waive that right and speak to me again?

Jackson: I want to tell you about the situation.

Jenkins: Look, before that, I can’t listen to anything like that, you see what I'm

saying, to cover myself.

Jackson: Okay.

Jenkins: I need to read you your writes again and if you want to talk to me after

that, we can do that okay.

Jackson: Okay. I would just rather wait until I consult with a lawyer.

Jenkins: Okay, that’s fine. Um since we are in here, I do have to read your

rights again, and then we will go through the whole you want to

speak to a lawyer, okay?

* * * * *

¶59. During the suppression hearing, Jenkins acknowledged in his testimony that Jackson

requested an attorney. Further, during the suppression hearing, Jenkins admitted he did

nothing to assist Jackson in obtaining counsel as requested. The record does not demonstrate

that Jackson waived his right to counsel or that Jenkins was confused about whether or not

Jackson requested an attorney. Instead, Jenkins stated he told his commander and went back

28
to his desk to work on other cases. After hearing arguments on the motion to suppress, the

circuit court rejected Jackson’s arguments that his constitutional rights were violated.

Specifically, the circuit court stated that “the degree of misconduct, if any, in the instant case

was of a slight degree and may have been the result of simple negligence. Thus, the Court

finds that this factor weighs in favor of admissibility.”

¶60. During trial, Jenkins testified that Jackson asked to speak with him again. Hours after

the first interview, Jackson invoked his right to counsel but was never afforded any legal

counsel. Jackson had been in custody for at least three hours with no food or drink. During

that time, Jackson requested to speak with Jenkins, who brought him lunch. Jenkins testified

at trial he thought it was Investigator Tommy Watkins who came and told him Jackson

wanted to talk. Jenkins, now accompanied by Investigator Kevin McCrary, met with Jackson

around 3:23 p.m. Once in the room, Jackson responded to Jenkins’s clarifying question

regarding whether Jackson had requested to speak to them? Jackson stated, “Uh huh.” 

Jenkins asked, “[A]re you willing to waive that right and speak to me again?” Jackson said,

“I want to tell you about the situation.” Seconds later, Jenkins stated, “I need to read you

your rights again and if you want to talk to me after, we can.” Jackson’s immediate,

unambiguous response was, “Okay. I would rather wait until I consult with a lawyer.” 

Jenkins responded by saying, “Okay, that’s fine. Umsince we’re here . . . .” Jenkins offered

no testimony about being confused or unclear as to what Jackson meant after Jackson’s

second request for counsel. Regardless, Jenkins read Jackson his rights and continued with

29
the questioning.

¶61. At trial, after the video ofJenkins and Jackson was played, defense counsel took issue

with the second interrogation of Jackson by Jenkins and McCrary and the second invocation

of the right to counsel. After a lengthy discussion in chambers, the trial judge said, “I’m

going to rule that there was a second waiver of his rights and that it was knowingly and

voluntarily made.” The trial judge determined that ultimately any objections to the

confession had already been discussed and handled in the suppression hearing prior to trial.

Jackson’s attorney cleverly made a motion for mistrial. The circuit court heard the motion

and ultimately held firm on its decision by stating that after Jackson’s second request for a

lawyer, he “knowingly and voluntarily waived his right to counsel after having asserted that

right the second time.” 

DISCUSSION

¶62. “Due to the fact-specific nature of requests for counsel and Miranda waivers, the

applicable law has become muddled. Accordingly, we review such requests on a case-bycase basis.” Downey v. State, 144 So. 3d 146, 150 (¶7) (Miss. 2014). Further, our Supreme

Court has stated that “errors involving a violation of an accused’s constitutional rights may

be deemed harmless beyond a reasonable doubt where the weight of the evidence against the

accused is overwhelming.” Hutto v. State, 227 So. 3d 963, 980 (¶49) (Miss. 2017). “Under

the Fifth Amendment, a person may invoke his right to counsel at any time prior to

or during custodial interrogation.” Smith v. State, 977 So. 2d 1227, 1230 (¶8) (Miss. Ct.

30
App. 2008) (emphasis added) (citing Holland v. State, 587 So. 2d 848, 856 (Miss. 1991)). 

The Mississippi Supreme Court has held that the right to counsel in Article 3, Section 26 “of

the Mississippi Constitution is congruent with the right to counsel guaranteed by the Fifth

and Sixth Amendments” to theUnited States Constitution, except the Sixth Amendment right

attaches earlier under Mississippi statutory law. Franklin v. State, 170 So. 3d 481, 486 (¶20)

(Miss. 2015) (citing Grayson v. State, 806 So. 2d 241, 247 (¶20) (Miss. 2001)).13

¶63. Both the state and federal constitutions guarantee that the right to counsel may be

invoked at any time prior to or during police interrogation. Smith v. State, 977 So. 2d 1227,

1230 (¶8) (Miss. Ct. App. 2008). Our Supreme Court has specifically stated that “[t]he right

to counsel may be invoked specifically in any manner and at any stage of the interrogation

process.” Downey, 144 So. 3d at 151 (¶10) (citing Holland, 887 So. 2d at 85). Jackson’s

choice of words that he would “just rather wait” and “until I consult with a lawyer” was a

conscious choice not to continue to talk to Jenkins and McCrary and a clear, unambiguous

assertion of his right to counsel. There was nothing confusing or unclear necessitating

further clarification or a safe harbor to resort to for protection for the officers. Jenkins’s

13 In Franklin, 170 So. 3d at 492 (¶40) (Kitchens, J., concurring in part and dissenting

in part), Justice Kitchens wrote separately that the Mississippi Constitution provides greater

protection to criminal suspects’ invocation of counsel during interrogations than does the

United States Constitution. Accord Miss. Const. art. 3, § 26; see also Downey v. State, 144

So. 3d 146, 152 (¶9) (Miss. 2014) (“Davis does not require Mississippi to follow the

minimum standard that the federal government has set for itself. We are empowered by our

state constitution to exceed federal minimumstandards of constitutionality and more strictly

enforce the right to counsel during custodial interrogations.”).

31
“Okay, that’s fine” statement was a definite and clearly communicated affirmation that

Jackson invoked his right to counsel a second time. 

¶64. To continue, the majority opines that Jenkins and McCrary were confused or unclear,

but that state of mind is not expressed during the interrogation, nor is it present in the record.

This conception is actually an assumption because at no point in the record does either officer

testify, say, or even imply that he was confused, unclear, unsure, or perplexed. Jackson’s

assertion was crystal clear compared to the accused in Davis v. United States, who just

remarked, “Maybe I should talk to a lawyer.” Davis v. United States, 512 U.S. 453, 455

(1994) (emphasis added); see also Barnes v. State, 158 So. 3d 1127, 1135 (¶26) (Miss. 2015). 

The defendant ambiguously requested an attorney when he stated, “[M]aybe I should get an

attorney.” During the suppression hearing in Barnes, a fire investigator testified that he

stopped the questioning and gave Barnes the option to continue. He admitted on the stand

what he needed to hear in order to cease the questioning. 

¶65. Here, Jackson unambiguously invoked his right (unlike John Lee Franklin, who

commented that he needed some help when he was arrested and questioned for arson).

Franklin, 170 So. 3d at 485 (¶13). In Davis, Barnes, and Franklin, there was equivocation

and ambiguity. In Barnes, the officer testified what words would have made Barnes’s

assertion clear. Barnes, 158 So. 3d at 1131 (¶10). This was not the case with Jackson and

is distinguishable from the authority previously cited. Jackson’s statement or assertion was

far from ambiguous, and it was not an effective waiver of his right to counsel. Next, Jenkins

32
never said or testified that he was unclear about Jackson’s statement. In Franklin, our

Supreme Court cited Davis, finding the following:

Davis carefully reiterated that, if a suspect effectively waives his or her right

to counsel after receiving the Miranda warnings, law enforcement officers are

free to question him or her . . . . But if a suspect affirmatively requests counsel

at any time during the interview, he or she is not subject to further questioning

until a lawyer is made available or the suspect reinitiates conversation. 

Franklin, 170 So. 3d at 491 (¶34) (emphasis added)). When an accused clearly expresses his

desire or choice to consult an attorney prior to the reading of his Miranda rights, the

recitation of the rights becomes moot because there should be no further interrogation or

exchange between the suspect and investigators.

¶66. Jackson did not reinitiate a conversation with Jenkins after invoking his right to

counsel. Jackson unambiguously requested counsel. Earlier in the day, when Jackson first

invoked his right to counsel, Jenkins properly ended all communication with Jackson and left

the room. Jackson initiated the second conversation with Jenkins shortly after 3:00 p. m., but

not long after Jenkins entered the room, Jackson asserted his right to counsel a second time.

After making the second request for counsel, Jackson did not reinitiate the conversation.

Jenkins kept going since he was already there. Once Jackson asserted his right to counsel,

Jenkins had no reason to attempt to have Jackson sign a waiver or explain anything further

because Jackson’s clear assertion rendered that effort moot. When Jackson made his clear

request for counsel, any further questioning should have been limited to identifying and

obtaining the counsel as requested. Downey, 744 So. 3d at 152 (¶11). 

33
¶67. There was no ambiguity, and the record does not support that Jenkins or McCrary

were unsure or confused about what Jackson said. Jackson was not required to use specific

language such as “I want a lawyer.” Id. at 151 (¶10) (quoting Montoya v. Collins, 955 F.2d

279, 283 (5th Cir. 1992)). However, Jackson did specifically express to Jenkins and

McCrary his choice to wait until consulting with an attorney. It was improper for Jenkins to

proceed with any questions outside the scope of obtaining an attorney for Jackson. I agree

with the outcome pursuant to Bostic and Hutto, but I cannot agree with the majority’s opinion

insofar as it fails to recognize the clear violation of Jackson’s right to counsel. 

¶68. For the foregoing reasons, I write separately.

BARNES, C.J., AND McDONALD, J., JOIN THIS OPINION. McCARTY,

J., JOINS THIS OPINION IN PART.

34