IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 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 W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHRISTOPHER E. KITCHENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: SCOTT W INSTON 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 f ound guilty of exploitation of a m inor. The circuit court sen t e n c e d J a c kson to a term of twelve y ears in the custody of the Mississippi Departm ent o f Corrections, with f i ve y ears suspended a nd seven y ears to serve. Jackson appealed, a rgui n g the circuit court e rred in (1) f ailing to provide h im a probable

cause hearing u nder Mississippi Code Annotated section 9 9-3-28(1)(a) (Rev. 2007); (2) f ailing to suppress his c onf ession; (3) f

ailing to suppress e v idence obtained f rom his hom e; (4) l im i ting his theory o f def ense; (5) ref

using h i s p r oposed jury instructions; (6) allowing witness testim o n y t hat violated the rules of discovery ; and (7) ref using to grant his m otionf

or a new trial. Finding no error, we af f irm t he circuit court’s judgm e n t. FACTS ¶2. In 2013, Jackson was a m usic t eacher and choir director at C olum bus High School in Colum bus, Mississippi. K .B. 1 attended Colum bus High S chool but w a s not one of J ackson’s students. On Novem

ber 22, 2013, Jackson m essaged K.B. on “Kik,” an instant m essaging

a p p l i c a t i on (“app”) f

or m o bile devices. W hen K.B. asked, “who m ight this be,” Jackson responded, “an a d mi r e r . . . I’m af raid to say [ b ecause] I’m older than [ y ou and] I work at CHS

. . . . ” K.B. tried guessing, a nd Jackson m essaged, “Bef o re I proceed I have to tell [ y ou] I’m a g uy [ and] I d on’t know if y ou would [ be] cool with that.” K.B. r eplied, “as l ong as y ou don’t try or harass m e we cool.” ¶3. A f

ew day s later, Jackson asked K.B. f or his cell phone num

b er, and they b egan text

m essaging. Jackson asked K.B. detailed questions about his s ex lif e and the size o f his penis. Jackson asked K.B. how “ big” he was and suggested K.B. should get paid to r eceive oral sex. Jackson then m essaged, “[ T ]hat could be very lucrative f or [ y ou] . . . [ why ] not get paid to get what [ y ou] already getting

. . . .” K.B. responded, “[ I don’t know] m oney talks though.” ¶4. J a c k s o n o f

f e r e d K

. B. $50 to give K.B. oral sex. K.B. said that was too c h e a p . Jackson then of

f e red $ 1 0 0 , and K.B. replied, “ I [ was] looking f orward to a Salvatore Ferragam o belt.” Jackson then of f ered $275. K.B. agreed. ¶5. They

went back and f

orth on m eeting tim es. On Decem ber 7, 2013, they

attem pted

1 We u se in itials to p ro tect th e m in o r’s id en tity

. 2to m eet i n a gas station bathroom , but J ackson backed out upon arrival, claim ing there was

too m uch activity at the gas station. He was also worried about the c am eras on the outside of the gas station. Jackson asked K.B. to f ollow him to his house, but K.B. said he could not because his m other called and needed a ride. ¶6. K.B.’s last m e ssage to Jackson was o n D e c e mb er 16, 2013. He said the hall “was talking,” im

ply ing t hat other students knew about what was going on between them

. At the end of January , K.B. told h is m other a bout the m essages. On January 31, 2014, t hey went
to the police s t ation and m e t with Investigator T abertha Hardin. K.B. told Investigator Hardin about the m essages between him self and Jackson and showed her t he m e s s a ges on his phone. Jackson was arrested two day s l a t er. Investigator Hardin prepared a search

warrant f or J ackson’s hom e and c ell phone, which the p olice seized the f ollowing day

. The police also seized two com p uters, f our phones, two tablets, three hard drives, and three jum p drives. A f

orensic analy s is of Jackson’s phone showed the text m essages between Jackson and K.B., including som e deleted m essages. 2 ¶7. On February 3, 2014, around 12 p.m ., Investigator Tim othy Jenkins m e t with Jackson. Jackson i mme d i a t e ly requested a lawy er. Investigator Jenkins read Jackson his M iranda 3 rights, and Jackson signed a w aiver. At that point, t he interrogation ceased, and Investigator Jenkins lef

t.

2 T h e in itial f

o ren sic a n aly sis d id n o t rev eal an y t ex t m essag es b etw een Jack so n an d K

. B . L ater, w ith ad v an ced tech n o lo g y , th e m essag es w ere reco v e red

.

3 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 (1 9 6 6 ). 3¶8. A f

e w hours later, i t is undisputed that Jackson reques t e d t o s p e a k a g a i n w i t h Investigator Jenkins. The f ollowing exchange occurred: Inv. Jenkins: You requested to speak to m e, is that right? Jackson: Uh huh. Inv. Jenkins: Again, I’ m I n v e s t i gator J enkins, that’s Investigator McCrary

.

Bef ore we get started talking, earlier today when w e s tarted the interview, I read y our rights to y ou correct? Jackson: Uh huh. Inv. Jenkins: I need a y es or no . . . Jackson: Yes. Inv. Jenkins: And at that tim e , y ou requested to speak with a lawy er, i s that

correct? Jackson: Yes. Inv. Jenkins: Now, y ou are willing to waive t hat r ight and speak to m e again? Jackson: I want to tell y ou about the situation. Inv. Jenkins: Look, b ef

ore that, I ca n ’ t l i s t e n t o a ny thing like t hat, y ou see what I’m say ing, to cover m y self

. Jackson: Okay

. Inv. Jenkins: I need to read y ou y our [ rights] again and i f y ou want to talk to

m e af ter that, we can do that okay [ ? ] Jackson: Okay . I w o uld just rather w ait until I consult w ith a law y er. Inv. Jenkins: Ok a y , t h a t ’ s f i n e. Um since we are in here, I do have to read y our r ights a gain, and then we will go through the whole y ou want to speak to a lawy e r, okay ?

4Jackson: Okay

.

Inv. Jenkins: I u nderstand what y ou want to talk to m e about but like I said to

cover m e, cover the departm ent and the city , I have to go through the steps; do y o u know what I m ean? Jackson: Yes sir.

. . . . Inv. Jenkins: Like I said, we can talk about w hat y ou want to t alk about, t hat’s

f ine, but I have to go through all this. Jackson: Okay

.

. . . . Inv. J enkins: Okay

. W e are at the Colum bus Police Departm ent. Today ’s date is Mond a y , F ebruary 3rd. The tim e now is 3:23 p .m . Alright, just like bef

or e . . . (Read rights) Do y o u understand these rights? Jackson: Yes. Inv. Jenkins: (Read waiver of rights) Now, do y ou want to t alk to m e a b out

what y ou requested to talk to m e about? Jackson: Yes. Inv. Jenkins: If y o u would, sign right there. Of f icer McCrary is going to step out so y ou and I can talk okay ? Jackson: Okay

. Inv. Jenkins: You understand what y ou have been charged with, right? Jackson: Yes sir. Inv. Jenkins: You requested to speak with m e, is that right?

5Jackson: Yes sir.

Inv. Jenkins: Okay , what would y ou like to talk to m e about? (Em phasis added). Jackson signed a s econd Miranda waiver and conf e s sed to of

f ering K.B. $275 to receive oral sex f rom him

. ¶9. Jackson was indicted pursuant to Mississippi Code Annotated secti o n 9 7

- 5

- 3 3 (6) (Supp. 2013). On April 29, 2 0 15, Jackson f iled a m otion to suppress, claim ing that he was denied a probable cause hearing under Mississippi Code A n n o tated section 99-3-28(1)(a). As a r esult, he requested that any statem ents given t o the Colum bus Police Departm ent and
any evidence seized in connection with those statem e n ts be suppressed. ¶10. The circuit court subsequently h eld a heari n g o n the m otion to suppress and heard testim o ny f

rom Jackson and Investigators Hardin and Jenkins. 4 Jackson testif ie d t h a t h e asked to speak with Investigator Jenkins a second tim e because he “just r eally wanted to f ind

out what was going on.” At the close of the hearing, the circuit court continued the hearing and requested that t h e p arties provide brief ing on t he m otion to suppress—specif ically , whether or n ot the probable cause hearing of section 99-3-28(1)(a) w as a p plicable. Both parties c o mp l i e d a n d presented their argum ents at the second hearing. The circuit court ultima t e l y h e l d that the m ere f act that the student knew Jackson a nd that Jackson was a

4 O n Jan u ary 2 0 , 2 0 1 5 , Jack so n f i led a m o tio n to q u ash th e in d i ctm e n t, arg u in g t h at it w as “u n co n stitu t i o n a l l y o v er b ro a d .” T h e circu it co u rt also h eard th is m o tio n at th e h earin g an d u ltim ately

d en ied th e m o tio n . T h e co n stitu tio n ality o f th e in d i ctm e n t w as n o t raised as an issu e o n ap p eal. 6teacher at his school did not i nvoke t he us e o f s e c t i o n 99-3-28(1)(a). At no point in the

m otion to suppress o r during the h earing did Jackson’s attorney allege the statem e nt should be suppressed due to a violation of his invocation to an attorney

. Jackson’s a rgum ent
stem m ed solely

f r om the alleged statutorily

- required probable cause hearing. ¶11. The case was tried o n May 21 through May 25, 20 1 8

. A t t r i a l , t h e j ury heard

te s t im ony f

rom K.B. H e testif

ied that he f

irst m et Jackson leaving school early one day

. K.B. stated that Jackson asked him his nam e and age. T h e t w o l a t e r c rossed paths again when K.B. was in the school play

. K.B. was waiting f or his ride af

ter rehearsal, a nd Jackson asked him about his behavior at school and what k ind of student he was. Their next interaction w as through t he “Kik” app on Novem ber 22, 2013. K.B. testif

ied in detail to the i n s t a nt m essages and text m essages between him self and Jackson, stating that Jackso n of f ered him up to $275 to receive oral sex. ¶12. Investi g a t o r J e n k i n s testif ied t hat he initially r ead Jackson his Miranda rights and handed h im a waiver f

orm . He also testif

ied that he goes through the waiver f orm with every d e t a i nee even if he or she has requested a lawy er. Af ter Jackson invoked his rig h t t o a n attorney , I nvestigator J enkins w rote “requested lawy er” at the bottom of the f orm , had Jackson sign it, and lef

t. He stated that Jackson a sked to speak to him three and a half hours later, so he went back i n t o t h e r o o m where Jackson was being held. He testif i ed that he provided Jackson with a second waiver f orm . The video of the s e c o n d i n t e r v iew between Investigator Jenkins and Jackson was play ed f o r the jury

. The d ef

ense did not object when

7the video was of f ered into evidence or when t he video was play e d f o r the jury

. The def

ense only o b jected af ter the jury watched the entire video. 5 ¶13. Sedrick Fenster a lso testif i ed f o r the State. Fenster, a bail bondsm en, testif ied he had been f riends with J ackson since the early 2000s. Over the y ears, Fens t e r w a s the sound technician f

or Jackson’s s c hool concerts and p lay s. He stated t hat i n F ebruary 2014 he had been try ing to call J ackson because he knew Jackson had an event happening soon. W hen Jackson f inally called him back, he asked F enster if he knew he h ad been arrested. Fenster said, “[ N]o,” and Jackson asked him to com e over t o h is house. Fenster testif i ed that, af

ter he arrived at Jackson’s h o m e, Jackson adm itted he had of f ered m oney t o a student to receive oral sex. ¶14. The def

ense called Investigator Hardin a s its only witness. She testif ied that K.B. and his m other c am e to the police departm en t to report an incident where K.B. was getting

m essages f

rom a teacher at Colum

bus High School. Investigator Hardin then testif ied that she took screen s hots of K.B.’s m essages on his phone a nd then sent those screen s hots to her

com puter. ¶15. At the close of Inv estigator Hardin’s testim ony , the def e nse rested. The jury

f ound Jackson guilty

of exploitation of

a m inor. Jackson appeals. ANALYSIS

5 T h e a c tu al o b

j ectio n an d its an a ly sis w ill b e ad d ressed f u lly in p art tw o o f t h i s o p in i o n ’s an aly sis sectio n . 81. Mississippi Code Annotated section 99-3-28 does not apply .

¶16. Jackson claim s he was e ntitled to a probable cause hearing a s a licensed p ublic school teacher under section 9 9-3-28(1)(a). We review issues of statutory construction de novo. Smith v. W

ebster , 233 So. 3d 242, 247 (¶15) (Miss. 2017). “In m atters concerning statutory construction, ‘the f

unction of t he Court i s not to decide what a statute should provide, but to determ ine what it does provide.’” Id

. at (¶16) (quoting Lawson v. Honeywell Int’l Inc ., 75 So. 3d 1024, 1027 (¶7) (Miss. 2011). “W h en a statute is u nam b iguous, [ we apply ] the plain

m eaning of

its words.” Id

. ¶17. Section 99-3-28(1)(a) provides, in relevant part: Except as p rovided in subsection ( 2) of this section, bef

ore an a rrest warrant shall be issued against any teacher who is a licensed public school em ploy ee as def ine d i n S e c t i on 37-9-1

. . . f or a crim inal act, whether m isdem eanor or f elony , which is a lleged to have occurred w h i l e t h e teacher . . . w as in t he perform a nce o f o fficial duties , a probable cause hearing shall be held bef ore a circuit court judge. (Em phasis added). ¶18. The plain language of t he statute m andates a probable cause hearing bef ore an arrest
warrant is issued against a licensed public school teacher if engaged in a crim inal act while in the perf orm a nce o f his of

f icial duties. K.B. was not Jackson’s student. Jackson happened

to work at the sam e s chool K.B. attended. J ackson n ever taught K.B. Jackson never supervised K.B. In f

act, all of the alleged crim inal a ctivities by Jac k s on against K.B. occurred of

f cam pus, outside of s chool hours. Consequently , Jackson cannot avail him self of the procedures provided in this section.
92. The circuit court properly adm itted Jackson’s confession.

¶19. Jacks o n a r g u e s t h a t t h e c i r c u i t c o u r t erred in r ef using to suppress his conf ession because he had invoked his right t o c o u n s e l

. “W h ether a conf ession is adm issible is a f act-f inding f unction f or the t rial court, a nd its decision will not be overturned unless the trial

court applied an incorrect l egal standard, c om m itted m anif est error, o r m a de a decision against the overwhelm i ng weight of the evidence.” Haynes v
. Sta t e , 9 3 4 So. 2 d 983, 988 (¶15) (Miss. 2006). ¶20. Jackson f

irst argued f

or the suppression of the conf ession in his m otion t o suppress. However, as previously m e n t i o n ed, Jackson did not argue a violation of his Fif t h Am endm ent rights. 6 He instead argued that any conf ession obtained should be suppressed b ecause he was denied a probable cause hearing. That issue was addressed in t he f irst m otions hearing. The

court continued the hearing and reserved its ruling until the issue was bri e f e d

. During the

s e c o n d m o tions hearing, Jackson’s attorney a rgued that the conf ession should ha v e b e e n suppressed b ecause he did not receive an initial appearance within a reasonable tim e. The

court denied the m otion to suppress. At trial, without f urther objections, Investigator Jenkins testif i ed, and t he jury viewed the interview in question. Af ter the conf

ession was play ed f

or the j u r y , J a c kson objected, claim ing the conf ession was obtained in v iolation of his Fif th
Am endm ent rights. ¶21. An o b

j e c tion to evidence “m

u st be m ade as soon as it appears that the evidence is

6 U .S . C o n st. am en d . V

. 1 0objectionable, or a s soon as it could reasonably have been k nown t o the objecting party

. . . .” McGuire v. State , 170 So. 3d 570, 576 (¶14) (Miss. Ct. App. 2014) (quoting Sumner v. State , 316 So. 2 d 926, 927 (Miss. 1975)). H ere, Jackson had a c c e s s to the video and transcript
y ears bef ore trial. 7 As previously stated, Jac k s o n never raised this issue in his m otion to
suppress a nd never m ade any argum ents on the issue at eithe r hearing on that m otion. Further, at trial, when Investigator Jenkins was asked to testif y and t he video transcript was of f ered i nto evidence, Jackson again m ade n o objection. The day af ter the entire video was play ed f o r the jury , def

ense counsel objected, stating, “[ W ]hen I watched the video y esterday , I n oticed [ f

o r the f irst tim e] very cle a r l y i n the statem ent where t hey were talking to him , [ that Jackson] invoked his Fif th Am endm ent right.” This was done af ter the evidence was i n t r o d u ced and play ed t o the jury

. Further, this objection was m ade af ter the f ili n g o f a written m o tion to suppres s a n d t h e two hearings thereon, none of which raised this issue. Consequently , we f

ind Jackson waived his argum ent of a Fif th Am endm ent violation and did not preserve this issue f

or appeal. ¶22. W a iver n o twithstanding, t h e c i r c u i t c o u r t d i d n o t e r r i n a d m i t t ing Jackson’s conf ession. Jackson invoked his right to counsel during the f irst interview. W hen a suspect invokes his right to c ounsel, all custodial interrogation m ust c ease until the lawy e r is present,

7 D ef en se co u n sel f

i led a m o tio n f

o r d isco v ery o n A u g u st 2 2 , 2 0 1 4

. T h e d ef en se th en p ro v id ed a n o tice o f recip ro cal d isco v ery to t h e S tate o n M a y 1 8 , 2 0 1 5

. A lth o u g h th e reco rd d o es n o t r e v e a l t h e e x a ct d ate Jack so n receiv ed d isco v e ry f r o m th e S tate, i t is o b v io u s h e receiv ed it b ef

o re h e p ro v i d ed recip ro cal d isco v ery . 1 1u

n l e s s t h e s u s p e c t h i m s e l f “ i n i t i a t e s fu r t h e r com m u nication, exchanges, o r conversations with the police.” Edwards v. Arizona , 451 U.S. 477, 484-85 (1981). 8 The f irst i nterrogation did

cease. It is undisputed Jackson initiated f u rther c om m

unication with Investigator Jenkins,
prom pting the second i nterview. At t he beginni n g o f t h e second i nterview, the f ollowing exchange occurred: Jackson: I want to tell y ou about the situation. Inv. Jenkins: Look, bef

ore that, I ca n ’ t l i s t en to any thing l ike that, y ou see what I’m say ing, to cover m y self

. Jackson: Okay

. Inv. Jenkins: I need to read y ou y our [ rights] again and if y ou want to talk to

m e af ter that, we can do that okay [ ? ] Jackson: Okay . I would just rather wait until I consult with a lawy er. Inv. Jenkins: Okay , that’s f ine. Um s ince we a r e i n h e r e , I do have to read y our r ights a gain, and then we will go through the whole y ou want to speak to a lawy e r, okay ? Investigator Jenkins r ead Jackson his Miranda rights, a nd Jackson signed a s econd waiver f orm . The two began talking, and Jackson ultim ately conf essed. ¶23. First, we m

ust determ ine whether J ackson invoked his right to counsel. See Holland

v. S tate , 587 So. 2d 848, 855 (Miss. 1991). “Due to the f act-specif ic nature of requests f

or

8 T h e F if t h A m en d m en t rig h t to co u n sel , as i n co r p o r ated to ap p ly to th e states, attach es d u rin g cu sto d i al i n terro g atio n s . S e e C o l l in s v. S ta te , 1 7 2 S o . 3 d 7 2 4 , 7 3 6 (¶9 ) (M iss. 2 0 1 5 ), d i s t i n g u ish ed o n o th er g ro u n d s b y M a n n in g v. S ta t e , 2 6 9 S o . 3 d 2 1 6 , 2 2 0 (¶1 6 ) (M iss. C t. A p p . 2 0 1 8 ). 1 2counsel and Miranda waivers, the applicable l a w h a s becom e m uddled. A ccordingly , we review such requests on a case-by -case basis.” Downey v. S tate , 144 So. 3d 146, 150 (¶7) (Miss. 2014). ¶24. A person does not h av e t o u s e s pecif ic language such as “I w ant a lawy er” in order

to invoke the right to counsel. Montoya v. C ollins , 955 F.2d 279, 283 (5th Cir.1992). Only “som e kind of positive statem en t or other action that i nf orm s a reasonable person of the def endant’s ‘desire to deal with the police only through counsel’” i s required t o a s s e r t the right. W i lcher v. S tate , 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. “W hen there is am

biguity in the request f

or counsel, this Court applies a three-step t est
to determ ine whether the trial judge c o r rectly decided whether to adm it or suppress a def endant’s statem ents to a law enf orcem ent of

f icer.” Downey , 144 So. 3d a t 1 5 1 ( ¶ 1 8) (citing Holland , 587 So. 2 d 848). “ In apply ing this test, we consider (1) whether counsel was

am biguously requested; (2) if the request f or counsel was am

b iguous, whether the appropriate questions to identif y the counsel requested wer e a s k e d ; and (3) if the

9 T h e M ississip p i S u p rem e C o u r t h as said th at “an a mb i g u o u s m en tio n o f p o ssib ly sp eak in g t o o n e’s atto rn ey is i n s u f f icien t to trig g er t h e rig h t to co u n s e l.” G ra yso n v. S ta te , 8 0 6 S o . 2 d 2 4 1 , 2 4 7 ( ¶1 1 ) ( M i ss. 2 0 0 1 ) (citin g D a vis v. U n ited S ta tes , 5 1 2 U .S

. 4 5 2 , 4 5 9 (1 9 9 4 )). A m ere su g g e stio n o r m isu n d erstan d i n g is n o t en o u g h

. S ee id

. “A s u sp ect m

u st articu late h is o r h er d esire to h a v e co u n sel p resen t w ith su f f icien t clarity

th a t a reaso n ab le p o lice o f f icer u n d er th e c ircu m s tan ces w o u l d u n d erstan d th e statem en t t o b e a r e q u e st f o r an atto rn ey .” D ela sh m it v. S ta te , 9 9 1 S o . 2 d 1 2 1 5 , 1 2 2 0 (¶1 4 ) (M iss. 2 0 0 8 ). 1 3interrogation continued without counsel, whether there was a valid Miranda waiver.” Id

.

¶26. W e recognize that t his case presents a unique set of f acts. Jackson i nitially invoked his r ight to counsel, but several hours later he initia t e d f urther com m

unication. Af

ter Investigator Jenkins returned, Jackson said he wanted t o talk about the “ situation.” Investigator Jenkins attem pted t o re-read Jackson his Miranda rights, and Jackson stated he would r ather wait to consult a lawy er. Those two statem ents a r e c onspicuously in conf lict with each other. Further, those two statem ents c a m e af ter Jackson requested and initiated the new contact with law enf orcem ent. It would b e an underst a t e me n t o f p erplexing proportions to assert t he of f icers were not conf

used and unclear as to whether he w anted to talk or not. Investigator Jenkins then r etreated to the s af e harbor o f r eading the Miranda rights to see if the c onf

u sion could be cleared. Af ter Jackson was read h is r ights, he agreed to speak with law enf

orcem e nt. ¶27. A law e nf

orcem ent of

f icer cannot question the accused 10 about his crim inal conduct af ter he i nvokes his right to counsel. Kirkland v. State , 559 So. 2d 1046, 1047 (Miss. 1990). However, the of

f icer is perm i tted to inquire about counsel f or clarif ic a t i o n p u r poses. Kuykendall v. State , 585 So. 2d 773, 777 (Miss. 1991); see a lso H olland , 587 So. 2d at 858 (holding the interrogator’s line of questioning m ust not ex c eed the lim its of perm issible clarif i cation). Af

ter J ackson stated he would rather wait to c onsult a lawy er, Investigator

10 S ee U .S

. C o n s t. am e n d

. V I; M iss. C o n st. art. 3 , § 2 6 ; P a g e v. S ta t e , 4 9 5 S o . 2 d 4 3 6 , 4 3 9 (M iss. 1 9 8 6 ). 1 4Jenkins was perm itted to seek c l a r i f i cation. Investigator J enkins did not question Jackson about his crim inal c onduct. He only stated th a t h e n e e d e d t o r e-read Jackson his Miranda rights b ef ore listening to any

thing Jackson had to say about the “situation.” He also inf orm ed Jackson that they could talk about whether J ack s o n w a n t e d a lawy er af ter h e was read his Miranda right s . A t t h a t p oint, Jackson was r ead his Miranda r ights f or a second tim e and signed a second waiver f

orm . Investigator Jenkins then asked J ackson what h e wanted to talk about, and Jackson told Investigator Jenkins what he obviously wanted to say

. ¶28. Af ter apply i ng t he t hree-step test set f o rth in Holland , we f

i n d t h e c i r c u i t c ourt properly a dm itted J ackson’s conf essi on. Jackson initiated f u rther com m

unication with Investigator Jenkins and then stated he wanted a lawy er. Conf used b ecause J ackso n had requested to speak w ith him a second t im e to talk about “the situation,” I nvestigator Jenkins sought to clarif

y Jackson ’ s r e q u e s t by reading him his Miranda rights. A f ter 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 u ntil after the conf ession was p lay ed in its entirety to the jury

. The separate opinion d oes n ot a d dress the waiver issue. Rather, the s eparate opinion argues that our holding that Investigator Jenkins’
perm issive c larif

ication “erode[ s] constitutional principles” concerning the invocation of the right to counsel. ¶30. The ruling in this case i s directly determ ined by t he unique f acts of this c a se. Jackson invoked his rights in the f irst interview. The d etective s r e s p e cted that invocation and lef t.

1 5A f

ew hours later, Jackson clearly reinitiated contact with the detectives. W hen the detective re-entered the room , Jackson af f irm ed that he h ad asked t he detectives to r eturn. He then told the detective, “I want to tell y ou about the situation.” Then, alm o st im m ediately af ter m aking that statem ent, Jackson stated, “I would just rather wait u ntil I consult w ith a lawy er.” This

statem ent was dif

f erent f rom his previous statem ents asking the detectives to return and to “tell [ them ] about the s ituation.” S im p ly put, J ackson’s conf

licting statem ents m ade within

s e c o n d s o f each other, coupled with the f act t hat he had reinitiated the entire second conversation, c reated a conf using and am

biguous s ituation. Investigator Jenkins r esponded by r eading Jackson his Miranda rights again. Af t er the Miranda warnings were read, Jackson waived his r ights and began spea k i n g w i t h the detectives. W e f ind Investigator Jenkins’s attem

pt to clarif

y the situatio n b y r e a ding Jackson his constitutionally required Miranda rights w as not a violation of Jackson’s Fif

th Am endm ent rights. See K uykendall , 585 So. 2d at 777; see also Holland , 587 So. 2d at 858. ¶31. Further, even if t he circuit court had erred in a dm itting Jackson’s conf ession, the error would be harm less. [ T]he adm ission of statem ents taken in violation of an accused’s Fif th Am endm ent rights is “ a menable t o h arm l ess e r ror analy sis.” “In order f or a violation o f a c o n s t itutional right to be h eld harm l ess, this Court m ust determ ine that the violation was harm less bey ond a reasonabl e d oubt.” W e have held that “errors involvi ng 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 w eight of the evidence against the accused is overwhelm ing.” Hutto v. State , 227 So. 3d 963, 980 (¶49) (Miss. 2017) (citations om itted).

1 6¶32. Here, the weight of evidence against Jackso n i s overwhelm ing without h is conf ession.
K.B. t estif

ied that Jackson o f

f ered him $275 to receive oral s ex f rom him

. The text m essages between Jackson and K .B. corroborating that of f e r were adm itted into evidence bef ore the jury

. Finally , Fenster, J ackson’s longtim e f riend, testif

ied t hat Jackson adm itted to him that he (Jackson) had of

f ered a student m o ney f

o r oral s ex. Accordingly , even if t here was a Fif th
Am endm ent violation, it was harm less error bey ond a reasonable doubt. 3. The circuit court did not err in refusing to suppre s s evidence obtained from Jackson’s hom e. ¶33. Jackson c ontends that a ny item s seized f r o m h i s h o me w e r e a c q u i r e d f r o m an unlawf ully obtained conf

ession and theref

ore “f ruit of the poisonous tree.” As a result, he argues that the circuit court should have suppressed all evidence collected there. ¶34. W e review the circuit court’s d enial of a m otion to s u p p r e s s evidence f or abuse of discretion. Goff v. State , 14 S o. 3d 6 25, 641 (¶47) (Miss. 2 009). W e will n ot disturb the circuit court’s decision unless we f ind the circuit court “applied a n incorrect legal standard,

com m itted m anif

est error, or m a de a decision c ontrary to th e o v e r w h e lm ing weight of the evidence.” Simmons v. State , 8 05 So. 2d 452, 4 82 (¶64 ) ( M i s s . 2001) (quoting Taylor v. State , 733 So. 2d 251, 255 (¶18) (Miss. 1999)). ¶35. The e xclusionary prohibition against “ f r uit of the poisonous tree” a p plies to violations of the F if th Am endm ent p rivilege against self -incrim ination. See B rown v. I llinois , 422 U.S. 590, 599-601 (197 5 )

. O u r s u p r em e court has held “that the f ruit of the poisonous tree doctrine is def

eated where the conf

ession is judged adm issible.” Y ates v. State , 467 So. 2d
1 7884, 887 (Miss. 1984) (citing W iley v. State , 449 So. 2d 756, 759-60 (Miss. 1984)). ¶36. As p r e v i o u s l y d i s c u s s e d , w e f i n d t h a t J a c k s o n ’ s c onf ession w as adm issible. Theref ore, any item s seized as a result would not be “ f ruit of the poisonous tree.” However,

even i f that were not the case, the search warrant clearly indicated that the underly ing f acts and circum s tances derived solely f rom t h e mi n or victim ’ s statem e n t and the evidence that

was evident on his phone. Investigator Hardin also testif ied t o that e f

f ect at the f

irst hearing

on the m otion to suppress. Thus, the police would have discovered that inf orm ation without Jackson’s state me nt. I t was inevitable. T he m inor gave a statem ent to the police about Jackson’s actions. During that statem ent, K.B. showed the police the text m e ssages on his cell phone, corroborating his account t o the police. Sim ply put, the police were going to seek

a search warrant f

or Jackson’s hom e whether or not Jackson gave a statem ent. Fo r these

reasons, the circuit c ourt did n ot abuse its discretion in d eny ing J ackson’s m otion to suppress. 4. The circuit court did not abuse its discretion in lim iting Jackson’s theory of defense regarding consent and ex tortion. ¶37. Jackson n e xt argues that the circuit court erred in deny i ng h i m a n o pportunity on

cross-exam ination t o present evidence showing K.B.’s consent t o oral sex and his extortion of Jackson. “Lim i tations p laced on cross-exam ination are reviewed using an abuse-of

discretion standard.” Ervin v. State , 136 So. 3d 1053, 1058 (¶13) (Miss. 2014). ¶38. During K.B.’s cross-exam ination, Jackson attem pted to introduce vulgar song ly rics f r om songs he learned about f rom K.B. Jackson a rgued that t he ly rics w en t t o K

. B

. ’ s credibility an d w h e t h e r he was enticed to engage in the of f ered sexual a ctivity

. The State
1 8argued t hat consent is not a def e nse to child exploitation. The circuit court stated, “[ I]f the def ense wis h e s t o p ortray t he alleged victim i n this case, a child, as a m oney -seeking individual, I think he can do that, b ut I’m n ot going to allow it through the use of these songs

. . . .” Ultim ately , the circuit c ourt ruled that the evidence was irrelevant and that even if it were relevant it was m ore prejudicial than probative. W e agree. ¶39. Jackson’s a ttem

p t to i ntroduce graphic, vulgar song ly r ics as a d ef

ense to exploitation of a m inor is m isguided and disingenuous. The law i s c l e a r : a d u lts are prohibited f rom enticing m inors to engage i n sexually explicit conduct. A def endant cannot solicit sex with

a m inor a n d t h e n c laim as a def ense that the m inor wanted to have sex. The law does not af f ord such a def

ense. Be t hat as it m ay , the ly rics in the s ongs Jackson wanted to introduce did not prove what he asserted they did. ¶40. F u r t h e r, J a ckson also claim ed that K.B. sent him a blackm a il letter. 1 1 O n c r o s s exam ination, Jackson tried to question Investigator Jenkins and Fenster about the blackm ail letter, but the State objected. The circuit court prohibited the questioning, reasoning that any evidence of e xt o r t i o n was not a def ense to child exploitation and theref ore irrelevant. Further, there was no evidence a blackm ail letter ever existed. Finally , the inf orm ation about the b l a c km ail letter i nadvertently cam e into evidence during Jackson’s statem ent to the police. Theref

ore, although i t w as irrelevant, the jury heard J ackson’s extortion claim when it watched his conf

ession.

11 N o b lack m ail letter w as ev er reco v ered

. 1 9¶41. Af

ter r e v i e w , w e f

i n d t he circuit court did n ot abuse its discretion i n excluding Jackson’s proposed song ly rics and evidence of extortion. As recognized b y the c i r c u i t judge, consent and extortion are not def enses to child exploitation.
5. The circuit c ourt did not abuse its discretion in refusing Jackson’s proposed jury instructions. ¶42. “Jury instructions are generally within the discretion of the t rial court and the settled standard of r eview is abuse of d iscretion.” Bailey v
. State , 78 S o. 3d 308, 315 (¶20) (Miss. 2012) (citing N

ewell v. State , 4 9 So. 3d 66, 73 (¶20) (Miss. 2010)). “ The instructions are to be read together as a whole, with no one instruction to b e read alone or taken out of context.” Id

. (quoting Y

oung v. State , 8 91 So. 2d 813, 819 (¶16) (Miss. 2005)). “W hen read together, if the jury instructions f airly state the l a w o f the case and create no injustice, then no reversible error will be f

ound.” Id

. (citing Newell , 49 S o. 3d at 73 ( ¶20)). Our suprem e court “has held t hat ‘a def

endant is entitled to have jury instructions given which p resent his theory of the case; however, this entitlem en t i s l i mi t e d in t hat the c o urt m ay ref use an i nstruction which incorrectly states t he law, is covered f airly elsewhere i n the i nstructions, or is without f oundation in the evidence.’” Id

. (quoting Hearn v. State , 3 S o . 3 d 722, 738 (¶45) (Miss. 2008)). ¶43. Jackson contends t h e c i r c u i t c o u r t e r r e d i n r ef using to give j ury instruction D-2 regarding com

puter luring. Jury

instruction D-2 read: If y ou f ind that the State did not p r o v e a n y o n e of the elem ents of the crim e charged, then y ou m

ust f ind Michael D. Jackson not guilty of that c r im e. Y ou m ay then p roceed with y o ur d eliberations t o d e c i d e whether t he State h as
2 0proved bey ond a reasonable d o u b t a l l of the elem ents of the lesser crim e of

Com p uter Luring. Theref ore, if y o u f

i nd bey ond a reasonable d oubt f rom the evidence in this case that Michael D. Jackson did: 1. O n o r about or between Novem ber 22, 2013 through Decem b er 1 6 , 2013, in Lowndes County Mississippi; 2. Knowingly and intentionally use any com puter c om m

unication sy stem allowing the input, output, exam ination or transf er of c o m puter data or com puter p r o g r a ms f

rom one (1) com

puter to a nother, to initiate or engage in s uch com m

unication w ith a person under the age of eighteen (18); and 3. By m e ans of such com m

unication he im

portunes, invites or induces a person u nder the age of eighteen (18) y ears to engage in sexual intercourse, devian t s exual intercourse or sexual contact with him , or t o engage in s exual perf

orm ance, obscene sexual perf orm a nce or sexu a l conduct f or h is benef

it then y ou shall f

ind Michael D

. Jackson guilty of the lesser of

f ense of Com puter Luring. If t he State di d n o t p r o v e any one of the above listed elem ents bey ond a reasonable doubt, then y ou shall f ind Michael D. Jackson not guilty of Com p uter Luring. The court ref

used instruction D-2 because the elem ents of com puter luring and exploitation of a child are p ractically identical, and theref ore the j ury could not f

ind Jackson guilty of both the lesser of

f ense, com puter luring, and the m ore s erious of f e nse of exploitation o f a child. ¶44. Mississippi C ode Annotated section 97-5-27(3)(a) (Supp. 2 013) lists the e l em ents of

com puter luring: A person is guilty

of com puter luring when: (I) Kno w i n g the character and content of any com m unication of sexually oriented m aterial, he i ntentionally uses any com puter com m

unication sy stem
2 1allowing the input, output, exam ination o r t r a nsf er of com

p uter data or com puter program s f

rom one (1) com

puter to another, to initiate or engage in such com m

unication with a person under the age of eighteen (18); and (ii) By m eans of such com m unication he i m

portunes, invites or induces a person under t he age of eighteen (18) y e a r s to engage in sexual intercourse, deviant sexual intercourse or sexual contact with h im , or to engage in a sexual perf orm ance, obscene sexual perf orm ance or sexual conduct f or his benef

it. ¶45. Jackso n w a s i ndicted p ursuant to Mississippi Code Annotated section 97-5-33(6), which reads:
No person shall, by any m eans including com puter, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a c h i l d to m eet with the def endant or any other person f or t he purpose of engaging i n sexually explicit conduct. ¶46. W e agree with the c i r c u i t c o u r t ’ s f i n d i n g that the elem ents of both crim es are practically identical a nd that J ackson ca n n ot be f o und guilty o f b oth the l esser of f ense of

com puter luring and exploitation of a c hild. Further, n o reasonable juror could f ind Jackson

not guilty of exploitation and then under the sam e proof and sam e elem ents f ind him guilty of c om p uter luring. See Rowland v. State , 531 So. 2d 627, 631-32 (Miss. 1 988) (stating that it i s “ extrem ely unlikely ” f or an accused to be guilty of the greater of f ense w ithout also being guilty of the lesser of

f ense ) ). The grand jury indicted Jackson f or exploitation of a m inor, and he was either guilty

or not guilty

of that crim e. ¶47. Jackson n e x t a r g u e s t h at t he circuit court erred in deny ing jury instruction D-4, a lesser-included-of

f ense instruction on obscene electronic com m unications. Jury i nstruction D-4 read:

2 2I f y o u f ind t hat the State did not prove any one of the elem ents of the c r i me charged, then y ou m

ust f ind Michael D. Jackson not guilty o f that crim e. Y ou m ay then p roceed with y o ur d eliberations to decide whether t h e S t a t e h as proved bey ond a reasonable doubt all o f t h e elem ents of the lesser crim e of obscene electronic com m unications. Theref ore, if y o u f

i nd bey ond a reasonable d oubt f rom the evidence in this case that Michael D. Jackson did: 1. On or a

bout or b e t w e e n Novem

b er 2 2, 2013 through Decem ber 16, 2013, in Lowndes County , Mississippi; 2. Unlawf

ully m ake a com m ent, request, suggestion or proposal; 3. By m e ans of telecom m

unication, or electronic com m unication; 4. W hich is obscene, lewd or lascivious;
5. W ith i ntent to abuse, t hreaten or harass any party to a t elephone conversation, telecom m

unication or electronic c om m unication, t hen y o u s h all f

i nd Michael D. Jackson guilty of obscene electroni c com m unications.
I f t h e S t a t e did not prove any one of the above listed elem ents bey ond a reasonable doubt, then y ou shall f ind M ichael D

. Jackson not guilty of obscene electronic com m

unications. ¶48. The circuit court ref used the instruction b ecause there was no evidence p resented that Jackson intended to “abuse, threaten, or harass.” A circuit court m ay ref use a jury i nstruction if there is no evidence to s u p p o r t it. Hye v. S tate , 162 So. 3d 7 50, 753 (¶5) (Miss. 2015). Af ter review of the record, we f ind no evidenc e s h o w i n g that Jackson intended to abuse, threaten, o r harass K.B

. T h u s , t he circuit court was within its discretion t o ref use jury instruction D-4. 6. The circuit c ourt did not abuse its discretion in allow i ng Fenster’s
2 3testim ony .

¶49. On appeal, Jackson challenges the circuit court’s a d m ission of F enster’s testim ony , claim ing he was p rejudiced as a result. At t ri a l , t h e d e f ense objected to Fenster testif y ing because Fenster was not provided as a witness in the original discovery

. The State replied that it provided the d ef

ense a copy of F enster’s statem ent as soon as it was discovered in the f ile—about ten day s bef

ore trial. Jackson m a de no ef f ort t o show how or why ten day s was an insuf f icient period of tim e to prepare f or such evidence. ¶50. Nevertheless, “[ t]he st a n d a r d o f r e view f or the trial c ourt’s r

uling on a discovery violation is abuse o f d iscretion.” O’Neal v
. State , 977 So. 2d 1252, 1254 (¶10) (Miss. Ct. App. 2008). Mississippi Rule of Crim inal Procedure 17.9(b) outlines the procedures to apply when the State attem

pts t o enter prev i o u s l y undisclosed evidence over the def endant’s objection:
I f , during the course of trial, the prosecution attem p ts to introduce evidence which has not been tim ely disclosed to the def ense as required by these Rules and the def

ense objects to the introduction f or that reason, the court shall: (1) Grant t he d e f

e n s e a reasonable opportunity to interview the n ewly discove r e d witness and/or exam ine the newly produced docum ents, photographs or other evidence. (2) If , af ter such opportunity , the def ense claim s unf

a ir surprise or undue prejudice and seeks a c ontinuance or mi s t r ial, the court shall, in the interest of ju s t i ce and absent unusual circum stances, exclude the evidence, grant a continuance f or a period of tim e reasonably necessary f o r the def

ense to m e et the non-disclosed evidence, or g rant a m i strial. . . . ¶51. The c ircuit court com plied with subsection 1, allowing Ja c k s o n a s m u ch tim e as he
2 4needed to interview Fenster. Af ter the interview, Jackson m ade no other o bjections regarding Fenster as a witness. Nor did he m otion f o r a m istri a l o r m otion t o continue.
Because Jackson did not claim he needed additional t im e o r that w as prejudiced af ter his opportunity to interview Fenster, he is barred f rom doing s o on appeal. See Cole v. State , 525 So. 2d 365, 368 (Miss. 1987).
7. The circuit c ourt did not abuse its discretion in deny ing Jackson’s m otion for a new trial. ¶52. Jackson argues that the circ u i t c o urt erred in deny ing his m o tion f or a new trial. A

m otion f or a new trial challenges the w e i g h t o f t he e vidence. Daniels v. State , 107 So. 3d 961, 963 (¶12) (Miss. 2013). W e review the circuit court’s denial of a m otion f or a new trial f or abuse of discretion

. Id

. “Our role as appellate court i s to view the evidence in the light

m ost f avorable to the verdict a n d d i s t u r b t h e verdict only when it is so contrary to the overwhelm ing w eight of the evidence that to allow it to stand w o u l d sanction an unconscionable injustice.” L ittle v. State , 233 So. 3d 288, 289 (¶1) (Miss. 2017). ¶53. Jackson argues the jury considered screen shots that were “m anipulated” b y K.B., as evidenced by

testim ony

indicating that portions of the conversation were m issing f rom the

screen shots. 12 First, Jackson p resented no proof t hat K .B. m anipulated the screen shots by deleting som e of

his and K.B.’s m essages. Second, and m ore im portant, it does not m atter whether K .B. deleted any m essages. W hat m a tters are the u ndeleted m essages f rom Jackson

12 T h e tex ts d eleted stated , “w ak e u p ,” “o h ,” “? ,” “u m ,” an d “it’s th e b est tim e to d o it.” 2 5to K.B., of

f e ring K.B. up to $ 275 to receive oral sex. Those m essages c l e a r l y show that Jackson was in violation of Mississippi Code Annotated section 97-5-33(6). ¶54. Wh en viewing all t he evidence in the light m ost f avorable to the verdict , i n c l u d i n g K.B.’s testim ony , the text m essages, and Jackson’s conf ession, the verdict against Jackson does n ot sanction an unconscionable i njustice. Accordingly , the c ircuit court d id not abuse its discretion in deny ing Jackson’s m otion f o r new trial. CONCLUSION ¶55. W e f

ind that Jackson was n ot entitled to a probable cause hearing under Mississippi Code A nnotated section 99-3-28(1)(a). W e also f i nd that t h e circuit court did not err in adm itting into evidence Jackson’s conf e ssion and evidence obtained f rom his hom e. Further,

we f ind the circuit c ourt did not abuse i ts discretion in excluding f rom evidence J ackson’s vulgar song ly

rics and any evidence of extortion. The circuit c ourt did not abuse its discretion in r ef u sing Jackson’s proposed jury instructions. Nor did the circuit court abuse its discretion in allowing Fenster to testif y . F i n a l l y , the circuit court d id not err in deny ing J ackson’s

m otion f or a new trial. Accordingly , we af f irm the circuit court’s judgm ent. ¶56. AFFIRMED. CARLT O N A N D J . W I L S O N , P . J J . , G R E E N L E E , T I N D E L L A N D C . W I L S O N , JJ., CONCUR. BARNES, C.J., CONCURS I N RESULT ONLY WITHOUT S EPARATE WRITTEN OPINION. McDONALD AND McCARTY, J J . , C O N C U R I N PART A ND DISSENT IN PART WITHOUT SEPARATE W R I T TEN OPINION. WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J., AND M cDONALD, J.; McCARTY, J., JOINS IN PART.

2 6WESTBROOKS, J., CONCURRING IN PART AND DISSENTING I N PART:

¶57. I agree that the weight of the evidence against J ackson is solidly overwhelm ing, and in keeping with our Court’s holding in Bostic v. State , 282 So. 3d 423, 431 (¶31) (Miss. Ct. App. 2019), which cites t he Suprem e C ourt’s holding in Hutto v. S tate , 227 S o. 3d 963, 980 (¶49) (Miss. 2017), that t he v iolation of a c onstitutional right m a y be harm less error, I concur in p a r t

. W h i l e I am bound t o f o llow that settled holding i n o ur State law, I c annot f urther erode constitutional p rinciples and agree that an accused’s i nvoking h is r igh t t o c o unsel is

am biguous subsequent to him i nviting questioning by law enf orcem ent. In the f

ace of a clear assertion, that is not the law. Ther e f o r e, I can not a g ree that Jackson’s statem ent that “I would just r ather wait until I consult w ith a lawy er” was a m biguous, l eaving the trai n e d of f icers conf used and u nclear about whether he wanted the assistance of counsel. Jackson clearly and unam

biguously invoked his constitutional right to counsel. This is where I depart f rom the m ajority ’ s opinion and write separately

.

FACTS AND PROCEDURAL HISTORY ¶58. To avoid repetition, I will reiterate the relevant excerpts of the i nterrogation transcript f or em phasis: I, Michael Jackson, m a ke the f ollowing statem ent to I nv. Tim othy Jenkins , W h om I know t o b e P o l i ce Of f icers of t he Colum

b us, Mississippi, P olice Departm ent. I have been advised that I do not have to m ake a statem ent and, i f I d o , any

thing I say can be used against m e in a court of l aw. I have b e e n ad v i s e d t hat I am entitled to legal counsel b ef ore m aking any s tatem ents. Having been so a dvised and not being threatened in any way or prom ised any rewards or leniency

that would entice m e to m ake a statem e nt, I do m a ke the f ollowing statem ent f

ree and voluntarily :

2 7Jenkins: You requested to speak to m e, is that right?

Jackson: Uh huh. Jenkins: A g a i n , I ’ m I n v estigator Jenkins, that’s I nvestig a t o r M c C r a r y .

Before w e g et started talking, e a r lier today w hen w e started the interview , I read y our rights to y ou correct?

* * * * * Jenkins: Now, y o u

are willing to waive that right and speak to m e again? Jackson: I want to tell y ou about the situation. Jenkins: Look, bef

ore that, I can’t l isten to any thing like that, y ou see what I' m say ing, to cover m y self

. Jackson: Okay

. Jenkins: I need to read y ou y our writes again and if y ou want to talk t o m e af ter that, we can do that okay

. Jackson: Okay . I w ould just rather w ait until I consult w ith a law y er. Jenkins: Okay , that’s fine. Um since w e are in here, I do have to read y our

rights again, and then w e w i ll go t hrough the w hole y ou w ant to speak to a law y er, okay ?

* * * * * ¶59. During the suppression hearing, Jenkins acknowledged in his t estim ony that Jackson requested an attorney

. Further, during t h e suppression hearing, Jenkins a dm itted he did nothing to assist Jackson in obtaining counsel as requested. The record does n ot dem onstrate that J ackson waived h is r ight to counsel or that Jenkins was c onf used a bout whether or not Jackson requested an a ttorney

. Instead, Jenkins stated he t old his com m ander a nd went back

2 8to his desk to work on other cases. Af ter hearing argum ents o n t he m otion to suppress, the circuit court rejected Jackson’s argum ents that his constitutio n a l rights were violated. Specif ically , the circuit court stated that “the degree of m isconduct, if any , in t he instant case

was of a slight d egree a n d may have b een the result o f sim ple negligence. Thus, the Court f inds that this f

actor weighs in f

avor of adm issibility .” ¶60. During trial, Jenkins testif i ed that Jackson a sked to speak with him again. H ours af ter the f irst interview, Jackson i nvoked his right t o counsel b u t w a s n e v e r af f orded any legal counsel. Jackson had been in custody f or at least three hours with no f ood o r drink. During that tim e, Jackson requested to speak with Jenkins, who b rought him lunch. Jenkins testif ied

at trial h e thought it was Investigator Tom m y Wa t k i n s w h o c am e and told him Jackson wanted to talk. Jenkins, now accom panied by Investigator K evin M cCrary , m et with Jackson

a r o u n d 3:23 p.m . Once in the room , Jackson responded to Jenkins’s c l arif y ing questio n regarding wheth e r Jackson had r equested to speak t o them ? Jackson stated, “Uh huh.” Jenkins asked, “[ A]re y ou willing to waive that right and s peak to m e again? ” Jackson said,
“I w ant to tell y o u about the situation.” Seconds later, J e n k i n s s t a t e d , “ I n eed to read y ou
y our rights again and if y ou w ant t o talk to m e af t e r , w e can.” Jackson’s im m ediate,

unam biguous response was, “ Okay . I w ould rather w ait until I c onsult w i th a law y er .” Jenkins responded by say ing, “ Okay , that’s fine

. U m since we’re here

. . . .” Jenkins of f ered

no testim ony about being conf u sed or unclear a s to what Jackso n m eant af t er J ackson’s second request f

or counsel. R egardless, Jenkins r ead Jackson his rights a n d continued with

2 9the questioning.

¶61. At trial, af

ter the video of Jenkins and Jackson was play ed, def ense counsel took issue with the s econd interrogation o f Jackson by J e nkins and McCrary and the second invocation of the right to counsel. Af ter a lengthy discussion in c h a mb e r s , t h e trial judge said, “I’m going to rule that there w as a second waiver of h i s r i g h t s and that i t was knowingly and voluntarily m ade.” The trial judge d eterm ined that ultim ately any obje c t i o n s t o the conf ession had already been discussed a nd handled in the suppression hearing prior to trial. Jackson’s attorney

cleverly m ade a m otion f

or m istrial. The circuit court heard the m otion and ultim ately

held f i rm on its decision by

stating that af

ter Jackson’s second request f or a lawy er, he “knowingly and voluntarily waived his right to counsel af ter having a sserted that right the second tim e.”
DISCUSSION ¶62. “Due to the f

act-specif i c n a t u r e o f r e q u e sts f

or counsel and Miranda waivers, the applicable law has b e com e m uddled. Accordingly , we review such requests on a case-by

case basis.” Downey v. State , 144 So. 3d 146, 1 50 (¶7) (Miss. 2014). Further, our Suprem e Court has stated that “ errors involving a violation of an accused’s constitutional rights m ay be deem ed harm less bey o nd a reasonable doubt where the weight of the evidence a gainst the accused is overwhelm ing.” H utto v. State , 227 So. 3d 963, 9 80 (¶49) ( Miss. 2017). “Under the Fif th Am endm ent, a person m ay invoke his right to counsel a t any tim e prior to

or during custodial i nterrogation .” Smith v. State , 9 77 So. 2d 1227, 1230 (¶8) (Miss. Ct.

3 0App. 2008) (em phasis added) (citing H

olland v. State , 587 So. 2d 848, 8 5 6 ( M i s s. 1991)). The M ississippi Suprem e Court has held that the right t o counsel in Article 3, Section 26 “ of

t h e M ississippi Constitution is congruent with t he right to counsel g uaranteed b y the F i f t h and Sixth Am e ndm ents” to t h e U nited States C onstitution, except the Sixth Am endm ent right attaches earlier under Mississippi statutory law. F ranklin v. State , 170 So. 3 d 481, 4 86 (¶20) (Miss. 2015) (citing Grayson v. State , 806 So. 2d 241, 247 (¶20) (Miss. 2001)). 13 ¶63. Both the state and f e dera l c o n s t i t u t ions guarantee that the right to counsel m ay be invoked at any tim e prior to or during police interrogation. Smith v. State , 977 So. 2d 1227, 1230 (¶8) (Miss. Ct. App. 2008). O ur Suprem e Court has specif ically s tated t hat “[ t]he right

to counsel m ay be invoked specif ically in any

m anner and at any

stage of the interrogation process.” Downey , 144 S o. 3d a t 151 (¶10) ( c i t ing Holland , 887 So. 2d at 85). J ackson’s choice of words that h e w ould “just rather wait” and “until I consult w ith a lawy er” was a conscious choice not to continue to talk to Jenkins and McCrary and a clear, unam

biguous assertion of his right to counsel. There was n othing conf u sing o r unclear necessitating f urther c l a r i f

i c a t ion or a saf

e harbor to resort t o f

or protection f

or the o f f icers. Jenkins’s

13 In F ra n klin , 1 7 0 S o . 3 d at 4 9 2 (¶4 0 ) (K itch en s, J., co n cu rrin g i n p art an d d issen tin g in p art), Ju stice K itch en s w ro te sep arately th at t h e M i ssissip p i C o n s titu tio n p ro v i d es g reater p ro tectio n to crim in a l s u sp e cts’ in v o c a t i o n o f co u n s el d u rin g in terro g atio n s th an d o es th e U n ited S tates C o n stitu t io n . A cco rd M iss. C o n st. art. 3 , § 2 6 ; s ee a l so D o w n ey v. S ta te , 1 4 4 S o . 3 d 1 4 6 , 1 5 2 (¶9 ) (M iss. 2 0 1 4 ) (“ D a vis d o es n o t req u ire M ississip p i to f o llo w th e m in im u m stan d ard th a t th e f

ed eral g o v ern m en t h as set f o r itself

. We are em

p o w e r ed b y o u r state c o n stitu tio n to ex ceed f e d eral m in im

u m stan d ard s o f co n stitu tio n ality an d m o re strictly en f o r ce th e rig h t

to co u n sel d u rin g cu sto d ial in terro g atio n s.”). 3 1“Okay , that’s f i n e ” statem ent was a def inite and clearly com m

u nicated af

f irm ation that Jackson invoked his right to counsel a second tim e. ¶64. To continue, the m ajority opines that J enkins and McCrary w ere conf u sed or unclear, but that state of m ind is not expressed during the i nterrogation, nor is it p resent i n the record. This conception is actually an a ssum ption because at no point i n the record does either of f icer testif y , say , or even i m

p l y that he was con f

used, unclear, unsure, or perplexed. J ackson’s assertion was cry stal clear com pared to the accused in Davis v. U n i t ed States , who just

rem arked, “

Maybe I should talk to a lawy er.” Davis v. Uni t ed States , 512 U.S. 453, 455 (1994) (em

phasis added); see also Barnes v. S tate , 158 So. 3d 1127, 1135 (¶26) (Miss. 2015). The def endant am

biguously r equested an attorney when h e stated, “[ M ]ay be I should get an attorney .” D uring the suppression hearing in B ar n e s , a f ire investigator t estif

ied that he stopped the questioning and gave Barnes the option to continue. He adm itted on the stand what he needed to hear in order to cease the questioning. ¶65. Here, Jacks o n u n a m b i g u o u s l y invoked his right (unlike J ohn Lee Franklin, who

com m ented that h e needed som e help when he was arrested and q uest i oned f

or arson). Franklin , 170 So. 3d at 485 (¶13). In Davis , Barnes , and F ranklin , there was equivocation and am biguity

. In Barnes , t he of f icer t e s t i f i e d what words would h ave m ade Barnes’s assertion clear. Barnes , 1 58 So. 3d at 1131 (¶10). This was not the case with Jackson and is d istinguishable f

r om the authority previously cited. J ackson’s statem ent or assertion was f ar f rom am b iguous, and it was not an ef f e ctive waiver of his right t o counsel. Next, Jenkins

3 2never said or testif ied that he w as unclear about Jackson’s statem ent. I n F r a n k l i n , our Suprem e Court cited Davis , f inding the f

ollowing:
Davis caref

ully reiterated that, if a suspect ef f ectively waives his or her right to counsel af

ter receiving the Miranda warnings, law enf orcem ent of

f icers are f ree t o question him or her

. . . . But if a suspect affirmatively r e quests counsel at any time during the interview, he o r she is not subject to further questioning until a lawyer is made available or the suspect reinitiates conversation

. Franklin , 170 So. 3d a t 491 (¶34) (em phasis added)). W hen an a c cused c l early expresses his desire or choice to consult an attorney prior t o the re a d i n g o f h i s M iranda rights, the recitation of the r ights becom es m oot b ecause t here s h ould be n o f urt h e r i n t e r r ogation or exchange between the suspect and investigators. ¶66. J a c k s o n d i d n o t r einitiate a conversation with Jenkins af ter invoking h is right t o counsel. Jackson unam

biguously requested counsel. Earlier i n the d ay , when Jackson f irst invoked his right to counsel, Jenkins properly ended all com m unication with Jackson and lef t the room . Jackson initiated the second conversation with Jenkins shortly a f t er 3:00 p. m ., but

not long af

ter Jenkins entered the room , J ackson asserted his r ight to counsel a second tim e. A f t e r m aking the second r equest f or counsel, Jackson did not reinitiate the conve r s a t i o n . Jenkins kept going since he was already there. Once Jackson asserted his right to counsel, Jenkins had no reason to attem pt t o h ave Jackson sign a waiver or explain any thing f urther because Jackson’s c lear assertion rendered that ef f ort m o ot. W hen Jackson m ade his clear request f or cou n s e l , any f

urther questioning should have been lim ited to identif y ing and obtaining the counsel as requested. Downey , 744 So. 3d at 152 (¶11).

3 3¶67. There w as no am biguity , and the record d o e s n o t s u p port that Jenkins or McCrary

were unsure or c onf

used about what Jackson said. Jackson was n ot required to use specif ic language s uch as “I want a lawy er.” Id

. at 151 (¶10) (quoting Montoya v. C ollins , 955 F.2d 279, 283 (5th Cir. 1992)). However, Jackson did specif i c a l l y e x press to Jenkins and McCrary his choice to wait until consulting with an a t torney

. It was im proper f or Jenkins to proceed with any questions outside the scope of obtaining an at t o r n ey f or Jackson. I agree with the outcom e pursuant to Bostic and Hutto , b ut I cannot agree w ith the m ajority ’s opinion insof a r as it f ails to recognize the clear violation of Jackson’s right to counsel. ¶68. For the f

oregoing reasons, I write separately

. BARNES, C.J., AND McDONALD, J., JOIN THIS OPINION. McCARTY, J., JOINS THIS OPINION IN PART.

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