                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-KA-01880-SCT

JOHN LEE FRANKLIN a/k/a JOHN FRANKLIN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          10/10/2013
TRIAL JUDGE:                               HON. MARCUS D. GORDON
TRIAL COURT ATTORNEYS:                     CHRISTOPHER A. COLLINS
                                           STEVEN KILGORE
COURT FROM WHICH APPEALED:                 SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    EDMUND J. PHILLIPS, JR.
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:                         MARK SHELDON DUNCAN
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 07/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    John Lee Franklin was found guilty of arson by a Scott County jury. The Scott County

Circuit Court sentenced Franklin to eighteen years in the custody of the Mississippi

Department of Corrections and ordered that Franklin pay a $1,500 fine, make restitution to

the dwelling house owners in the amount of $10,000 and make restitution to the victim in the

amount of $3,000. The court ordered that the fine and restitutions be made in monthly

installments of $150, with the first payment due ninety days following Franklin’s release

from confinement. Franklin appeals, arguing two issues: (1) the trial court erred in assessing
restitution; and (2) the trial court erred in admitting Franklin’s confession into evidence.

Finding no merit in either issue, we affirm the trial court judgment.

                                            FACTS

¶2.    Franklin and his girlfriend, Amanda Ormond, lived together with their children in a

house they rented from Eddie and Peggy Johnson located at 328 West Fourth Street in Forest,

Mississippi. The couple started having relationship problems, and Franklin began spending

several nights sleeping in his car.

¶3.    One day in September 2012, Amanda drove to Meridian, Mississippi, to pick up her

friend, Scott Smith. The two drove back to Amanda’s sister’s house that evening. Around

10:45 p.m., Amanda, Scott, and Amanda’s one-year-old son Jacoby, drove back to Amanda’s

house on West Fourth Street. When they arrived, Scott put Jacoby to bed and sat down to

watch television. Around 1:20 a.m., Amanda left to take her sister’s keys back to her house.

¶4.    While she was gone, Scott heard banging coming from the back door near the

laundry/utility room. When Amanda arrived home minutes later, Scott told her about the

noise. Amanda opened the door to the laundry/utility room and saw flames.

¶5.    Scott ran to get Jacoby, Amanda grabbed her purse, and they all ran out of the house.

Amanda called 911. Both Amanda and Scott saw Franklin running from behind the house

as they waited for the firemen to arrive.

¶6.    Deputy Fire Marshall Pete Adcock investigated the fire and determined that it was

incendiary. Franklin was arrested and gave a statement to Investigator Tom Rigby of the

Forest Police Department, stating as follows:



                                              2
       That Thursday, Amanda told me to leave. I kept walking. I came back around
       nine o’clock that night to talk to her. When I got to her house, she was gone.
       I had a key to the car, and then I got in the car and left. She said she was going
       to give me the car, but [sic] hadn’t put it in my name. I came back around
       twelve-thirty that night. I heard voices inside her house and saw her in the
       house with another guy. I then sat down and started to cry and then I heard the
       van leave. I then lost it and went and got a pair of longjohns and soaked them
       in gas and then struck the match and lit the longjohns on fire and threw them
       up into the attic. I–I left after that.

¶7.    Amanda stated that Franklin called her the day after the fire and “he stated that he had

set the house on fire because [she] didn’t want him no more, and that [she] had another man

holding his baby.”

¶8.    Franklin was charged with arson and found guilty. He was sentenced to serve

eighteen years in the custody of the MDOC. He also was sentenced to pay a $1,500 fine and

to pay a total of $13,000 in restitution upon his release. This appeal followed. Additional

facts, as necessary, will be related in our analysis.

                                         ANALYSIS

       I.     Whether the trial court erred in ordering Franklin to pay
              restitution.

¶9.    Franklin claims the trial court erred in assessing restitution because the trial court did

not meet the requirements set forth in Mississippi Code Section 99-37-3 (Rev. 2007). The

State contends that Franklin waived this issue by not objecting to the order of restitution at

sentencing.

¶10.   We agree with the State. Franklin waived this issue by not objecting to the restitution

order at trial. See Harris v. State, 757 So. 2d 195, 199 (Miss. 2000) (holding that because

the defendant did not object to the issue of restitution in the trial court, the issue was barred


                                               3
upon appeal); see also Powell v. State, 536 So. 2d 13, 17 (Miss. 1988) (same); Watts v. State,

492 So. 2d 1281, 1290-91 (Miss. 1986) (same).

¶11.   Procedural bar notwithstanding, this issue is meritless. Section 99-37-3(1) states in

part as follows: “When a person is convicted of criminal activities which have resulted in

pecuniary damages, in addition to any other sentence it may impose, the court may order that

the defendant make restitution to the victim . . . .” Miss. Code Ann. § 99-37-3(1). Section

99-37-3(2) requires the trial court to consider the following:

       (a) The financial resources of the defendant and the burden that payment of
       restitution will impose, with due regard to the other obligations of the
       defendant;

       (b) The ability of the defendant to pay restitution on an installment basis or on
       other conditions to be fixed by the court; and

       (c) The rehabilitative effect on the defendant of the payment of restitution and
       the method of payment.

¶12.   According to the record, the trial court heard evidence of the amount of damage

caused by Franklin’s crime. The court questioned Franklin as to his ability to pay that

amount. Afterward, the trial court ordered that Franklin pay a part of the total claimed and

ordered that it be paid in monthly installments, to which Franklin did not object. See Miss.

Code Ann. § 99-37-3(3) (“If the defendant objects to the imposition, amount or distribution

of the restitution, the court shall, at the time of sentencing, allow him to be heard on such

issue.”). For these reasons, we find no error in the trial court’s restitution order.

       II.    Whether the trial court erred in denying the motion to suppress
              Franklin’s statement.




                                               4
¶13.   Franklin contends that his Miranda1 waiver and confession were involuntary because

during interrogation, Franklin had stated to Investigator Rigby that he needed help. Franklin

argues that because Investigator Rigby failed to inquire further what help Franklin needed,

the State failed to meet its burden of proof that his confession was voluntary.

¶14.   For a confession to be admissible, it must have been given voluntarily and not as a

result of promises, threats, or inducements. Morgan v. State, 681 So. 2d 82, 86 (Miss. 1996).

Once a defendant alleges that his confession was coerced, he secures a due-process

entitlement to a reliable determination that his confession was not given as a result of

coercion, inducement, or promises. Id. The State shoulders the burden of proving beyond

a reasonable doubt that the confession was voluntary. Id. The State’s burden is met and a

prima facie case made out by testimony of an officer, or other persons having knowledge of

the facts, that the confession was voluntarily made without threats, coercion, or offer of

reward. Chase v. State, 645 So. 2d 829, 838 (Miss. 1994). A trial court’s findings of fact on

the issue of admissibility of a confession will not be overturned unless it is clearly erroneous

or contrary to the overwhelming weight of the evidence. Morgan, 681 So. 2d at 87.

¶15.   During the suppression hearing, Investigator Rigby testified that he read Franklin his

Miranda warnings prior to the interview and that Franklin acknowledged he understood

them. Franklin signed the waiver. Investigator Rigby testified that no threats were made and

no promises were given. Investigator Rigby testified that Franklin never asked for an

attorney and never asked that the questioning stop. When asked during cross-examination

       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).


                                               5
if Franklin had ever asked for help, Investigator Rigby said Franklin had stated that “he

needed some kind of . . . health help.” Investigator Rigby testified that he took this to mean

that Franklin was talking about his “day to day activities.” Investigator Rigby stated that he

did not think Franklin was asking for an attorney. The trial court questioned Investigator

Rigby further and asked at what point during the interview Franklin made the statement that

he needed help. According to Investigator Rigby, Franklin made the statement toward the

end of the interview.

¶16.   At the conclusion of the suppression hearing, the trial court found that Franklin’s

Miranda waiver was knowingly and voluntarily given. No threats or promises were made

to Franklin in exchange for his waiver and subsequent confession. The trial court agreed with

the State that Franklin was not referring to an attorney when Franklin made the statement that

he needed help.

¶17.   We find no abuse of discretion in the trial court’s ruling. The record supports the

finding that Franklin was advised of his Miranda rights, that he knowingly and intelligently

waived his rights, and that he freely and voluntarily confessed to setting fire to the house.

We also agree with the trial court that Franklin’s statement that he needed “help” was

insufficient to invoke his right to counsel. See Barnes v. State, 30 So. 3d 313, 317 (Miss.

2010) (“A defendant must articulate his desire to have counsel present sufficiently clear[]

that a reasonable police officer in the circumstances would understand the statement to be

a request for an attorney.”). The statement could constitute a request for any number of




                                              6
different types of aid. And it was unreasonable in this instance for Franklin to expect

Inspector Rigby to discern what sort of help he wanted.

¶18.   We find this issue is without merit.

¶19.   The separate opinion’s contention that the Mississippi Constitution provides greater

protection to criminal suspects who invoke the right to counsel during custodial

interrogations than does the United States Constitution is inaccurate and contravenes

Mississippi precedent.

¶20.   As we explained in Grayson v. State, 806 So. 2d 241, 247 (Miss. 2001), both the Sixth

Amendment of the U.S. Constitution and Article 3, Section 26 of the Mississippi Constitution

guarantee that the accused shall enjoy the right to have assistance of counsel for his or her

defense. Section 26 is congruent with the right to counsel guaranteed by the Fifth and Sixth

Amendments, “except for the fact [the right] attaches earlier [under Mississippi law.] Id.

This exception is not because Section 26 compels so, but because Mississippi Code Section

99-1-7 prescribes it. Cannaday v. State, 455 So. 2d 713, 722 (Miss. 1984).

¶21.   In Cannaday, this Court noted that Mississippi jurisprudence has the same

constitutional, statutory provisions, and rules guaranteeing the same rights by the Sixth

Amendment. Id. Citing Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed 2d 411

(1972), Cannaday said: “The time at which the right to counsel attaches to a defendant is

when adversary proceedings have been initiated, whether by way of formal charge,

preliminary hearing, indictment, information or arraignment.” Id. Cannaday, however,

distinguished Kirby by noting that: “In Mississippi commencement of prosecution is



                                              7
governed by Mississippi Code Section 99-1-7 where prosecution can be commenced by the

issuance of a warrant or by binding over or recognizing the offender to compel his

appearance to answer the offense, as well as by indictment or affidavit.” Id. In Page v.

State, 495 So. 2d 436 (Miss. 1986), Justice Robertson, writing for the Court, referred to

this–for the first time–as the “accusatory” stage. Page predicated this declaration with the

following: “For purposes of our state constitutional right to counsel, we define the advent of

the accusatory stage by reference to state law[,] Miss. Code § 99-1-7 . . . .” Id. at 439.

¶22.     Then, in Johnson v. State, 631 So. 2d 185 (Miss. 1994), the following misstatement

was made: “Under the Mississippi Constitution, the right to counsel ‘attaches once the

proceedings reach the accusatory stage . . . .’” Id. (quoting Williamson v. State, 512 So. 2d

868, 876 (Miss. 1987).2 Quoting from Johnson, this Court said it again in Gray v. State, 728

So. 2d 36, 72-73 (Miss. 1998), and then in McGilberry v. State, 741 So. 2d 894, 904 (Miss.

1999).       Johnson, Gray, and McGbilberry erroneously advise that the Mississippi

Constitution mandates when the right to counsel attaches. It does not. Section 99-1-7 does,

as both Cannaday and Page instruct.

¶23.     When–or at what stage–the right to counsel attaches is not at issue here. Rather, it is

the rule created by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477,

484-85, 1015 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), holding that “an accused, . . . having

expressed his desire to deal with the police only through counsel, is not subject to further



         2
         Williams correctly stated that “One’s right to counsel under Mississippi law attaches
earlier in the day than does the federal right. Williams, 512 So. 2d at 876 (citing Page v.
State, 495 So. 2d 436, 439 (Miss. 1986).

                                                8
interrogation by the authorities until counsel has been made available to him, unless the

accused initiates further communication, exchanges, or conversations with the police.”

“[T]he Edwards rule is not a constitutional mandate, but judicially prescribed prophylaxis.”

Maryland v. Shatzer, 559 U.S. 98, 105, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). And

its application “is justified only by reference to its prophylactic purpose.” Id. at 106. Its

purpose is designed “to protect an accused in police custody from badgering or overreaching

. . . that might otherwise wear down the accused and persuade him to incriminate himself

notwithstanding his earlier request for counsel assistance.” Smith v. Illinois, 469 U.S. 91,

98, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984) (quoting Oregon v. Bradshaw, 462 U.S. 1039,

1044, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983)).

¶24.   As explained in Holland v. State, 587 So. 2d 848, 856 (Miss. 1991), “[t]he right to

have an attorney present must be ‘specifically invoked.’” (quoting Edwards, 451 U.S. at

482). A problem arises, however, when there are ambiguous or equivocal statements or

utterances of the right to counsel. Holland noted that “precedents do not establish a bright-

line rule for determining whether an utterance is ambiguous, and the United States Supreme

Court has twice expressly declined to address the issue.” Id.

¶25.   Holland then surveyed federal caselaw and set forth the following three-part test for

determining whether the trial court should have suppressed a criminal defendant’s given

statement or confession after an Edwards violation purportedly occurred: 1) was the

statement ambiguous; 2) if so, was the subsequent scope of interrogation limited to clarifying




                                              9
the ambiguous statement; and 3) if the interrogation continued without counsel, was there a

valid Miranda waiver. Id. at 855-59.

¶26.   Almost three years after Holland was decided, the Supreme Court spoke to the matter

in Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). There,

the Court found that a suspect’s remark to law enforcement–“Maybe I should talk to a

lawyer”–was not a request for counsel. Davis explained:

               The right to counsel recognized in Miranda is sufficiently important to
       suspects in criminal investigations, and it requires the special protection of the
       knowing and intelligent waiver standard. Davis, 512 U.S. at 458 (quoting
       Edwards, 451 U.S. at 483). . . . The applicability of the “ ‘rigid’ prophylactic
       rule” of Edwards requires courts to “determine whether the accused actually
       invoked his right to counsel.” Smith v. Illinois, supra, 469 U.S. at 95, 105
       S.Ct. at 492 (emphasis added), quoting Fare v. Michael C., 442 U.S. 707, 719,
       99 S.Ct. 2560, 2569, 61 L. Ed. 2d 197 (1979). To avoid difficulties of proof
       and to provide guidance to officers conducting interrogations, this is an
       objective inquiry. . . . Invocation of the Miranda right to counsel “requires,
       at a minimum, some statement that can reasonably be construed to be an
       expression of a desire for the assistance of an attorney.” McNeil v. Wisconsin,
       501 U.S. at 178, 111 S. Ct. at 2209. But if a suspect makes a reference to an
       attorney that is ambiguous or equivocal in that a reasonable officer in light of
       the circumstances would have understood only that the suspect might be
       invoking the right to counsel, our precedents do not require the cessation of
       questioning. See [id]. (“[T]he likelihood that a suspect would wish counsel to
       be present is not the test for applicability of Edwards.”); Edwards v. Arizona,
       supra, 451 U.S. at 485, 101 S. Ct. at 1885 (impermissible for authorities “to
       reinterrogate an accused in custody if he has clearly asserted his right to
       counsel”) (emphasis added).

       . . . . The rationale underlying Edwards is that the police must respect a
       suspect’s wishes regarding his right to have an attorney present during
       custodial interrogation. But when the officers conducting the questioning
       reasonably do not know whether or not the suspect wants a lawyer, a rule
       requiring the immediate cessation of questioning “would transform the
       Miranda safeguards into wholly irrational obstacles to legitimate police
       investigative activity,” Michigan v. Mosley, 423 U.S. 96, 102, 96 S. Ct. 321,
       326, 46 L. Ed. 2d 313 (1975), because it would needlessly prevent the police

                                              10
       from questioning a suspect in the absence of counsel even if the suspect did
       not wish to have a lawyer present. Nothing in Edwards requires the provision
       of counsel to a suspect who consents to answer questions without the
       assistance of a lawyer. In Miranda itself, we expressly rejected the suggestion
       “that each police station must have a ‘station house lawyer’ present at all times
       to advise prisoners,” 384 U.S. at 474, 86 S. Ct. at 1628, and held instead that
       a suspect must be told of his right to have an attorney present and that he may
       not be questioned after invoking his right to counsel. We also noted that if a
       suspect is “indecisive in his request for counsel,” the officers need not always
       cease questioning. See id. at 485, 86 S. Ct. at 1633.

Davis, 512 U.S. at 458-59.

¶27.   Davis concluded with the following:

               We recognize that requiring a clear assertion of the right to counsel
       might disadvantage some suspects who—because of fear, intimidation, lack
       of linguistic skills, or a variety of other reasons—will not clearly articulate
       their right to counsel although they actually want to have a lawyer present.
       But the primary protection afforded suspects subject to custodial
       interrogation is the Miranda warnings themselves. “[F]ull comprehension
       of the rights to remain silent and request an attorney [is] sufficient to
       dispel whatever coercion is inherent in the interrogation process.” Moran
       v. Burbine, supra, 475 U.S. at 427, 106 S. Ct. at 1144. A suspect who
       knowingly and voluntarily waives his right to counsel after having that right
       explained to him has indicated his willingness to deal with the police
       unassisted. Although Edwards provides an additional protection—if a suspect
       subsequently requests an attorney, questioning must cease—it is one that must
       be affirmatively invoked by the suspect.

       ....

               Of course, when a suspect makes an ambiguous or equivocal statement
       it will often be good police practice for the interviewing officers to clarify
       whether or not he actually wants an attorney. That was the procedure followed
       by the NIS agents in this case. Clarifying questions help protect the rights of
       the suspect by ensuring that he gets an attorney if he wants one, and will
       minimize the chance of a confession being suppressed due to subsequent
       judicial second-guessing as to the meaning of the suspect’s statement
       regarding counsel. But we decline to adopt a rule requiring officers to ask
       clarifying questions. If the suspect’s statement is not an unambiguous or



                                              11
       unequivocal request for counsel, the officers have no obligation to stop
       questioning him.

              To recapitulate: We held in Miranda that a suspect is entitled to the
       assistance of counsel during custodial interrogation even though the
       Constitution does not provide for such assistance. We held in Edwards that
       if the suspect invokes the right to counsel at any time, the police must
       immediately cease questioning him until an attorney is present. But we are
       unwilling to create a third layer of prophylaxis to prevent police questioning
       when the suspect might want a lawyer. Unless the suspect actually requests an
       attorney, questioning may continue.

Davis, 512 U.S. at 460-62.

¶28.   In Grayson, this Court recognized Davis and said that “an ambiguous mention of

possibly speaking with one’s attorney is insufficient to trigger the right to counsel.”

Grayson, 806 So. 2d at 247 (citing Davis, 512 U.S. at 459).

¶29.   In Barnes, we quoted extensively from Davis, in addressing whether the defendant’s

statements, “So, I don’t need legal, okay”; “But I don’t have an attorney here”; and “Now,

if I do need to get a lawyer . . . I will get one”, constituted an assertion of the right to counsel

during police interrogation. In finding that the Edwards rule was not violated, we held the

following:

       We find that the record supports a finding that Barnes received the Miranda
       warning, that she knowingly and intelligently waived their rights, and that she
       freely and voluntarily made the statements. Pursuant to Davis, Barnes failed
       to make an unambiguous, unequivocal request for an attorney, and [law
       enforcement] had no obligation to stop questioning her.

Barnes, 30 So. 3d at 318 (citing Davis, 512 U.S. 452). Barnes was a unanimous decision.

¶30.   In Downey v. State, 144 So. 3d 146 (Miss. 2014), this Court, in a five-to-four

decision, ostensibly dismissed the Davis Court’s holding that “a suspect ‘must



                                                12
unambiguously request counsel,’ and that law enforcement officers are not required to cease

questioning based on an ambiguous request for counsel.” Downey, 144 So. 3d at 151

(quoting Davis, 512 U.S. at 459). The Downey majority said that “[t]he three-part test

established in Holland adequately guards the right to counsel for custodial suspects who may

not know that the right to counsel must be unambiguously asserted . . . .” Downey then

applied the three-part test prescribed by Holland and found that officers’ statements after the

suspect stated that she had an attorney and could use him, exceeded permissible scope of her

ambiguous invocation of right of counsel. Id. at 152. The Downey majority further found

that the suspect’s Miranda waiver was not knowing, voluntary, and intelligent. Id. at 153.

¶31.   Downey is uncertain in these respects. First, even though Downey cited Grayson and

Barnes’s, Downey made no mention of their accordance with Davis–in particular, Barnes’s

recognition and application of the objective standard instructed by Davis. Second, Downey

could be read as finding a direct Edward’s violation–regardless of either Davis or Holland.

The Downey majority, based on its review of the record, concluded that:

       Nancy Downey requested counsel. First, she stated that she had an attorney.
       Then, she said that she could use him. Despite these explicit statements, the
       officer crossed the line of clarifying whom Downey had requested as counsel
       by indicating some unspecified difficulty of procuring the lawyer’s presence
       expeditiously. All of this occurred after the officer had injected the alluring
       bait of bail into his conversation.

Id. at 153. Even though four dissenting members of this Court in Downey did not conclude

that Downey explicitly requested counsel, it is nonetheless arguable that Downey’s statement

met the level of clarity required by Edwards. Therefore, neither Davis nor Holland was

applicable.

                                              13
¶32.   Lastly, what must be gleaned from Davis is that Davis’s instruction that law

enforcement officers may continue questioning a suspect until and unless the suspect clearly

requests an attorney, is realized on the understanding that “the primary protection afforded

suspects subject to custodial interrogation is the Miranda warnings themselves.” Davis, 512

U.S. at 460. This clearly adjoins with the third prong related in Holland: if interrogation

continued without counsel, was there a valid Miranda waiver? Holland, 587 So. 2d at 859.

¶33.   Whether a suspect has “intelligently, knowingly and voluntarily” waived his or her

Miranda rights is a factual question that must be determined by the trial judge from the

totality of the circumstances. Neal v. State, 451 So. 2d 743, 753 (Miss. 1984). The totality-

of-circumstances test has no role in the determination of whether an accused’s request for

counsel is clear or equivocal. Holland, 587 So. 2d at 856 (citing Robinson v. Borg, 918 F.2d

1387, 1391 n.4 (9th Cir. 1990). A statement is either an unambiguous assertion of the right

to counsel or it is not. Davis, 512 U.S. at 459. But, with regard to the actual validity of a

suspect’s waiver of the Miranda rights, a defendant may always challenge the validity of the

waiver, and the State then bears the burden of proving the waiver. Neal v. State, 451 So. 2d

at 753. Review should focus on the “particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the accused.” Holland, 587 So. 2d at

860 (quoting Edwards, 451 U.S. at 482). Concern, according to Davis, that some suspects

who “because of fear, intimidation, lack of linguistic skills, . . .will not clearly articulate their

right to counsel although they actually want to have a lawyer present[,]” is abated by what

is required in demonstrating a valid Miranda waiver. Davis, 512 U.S. at 460.



                                                 14
¶34.   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. Davis, 512 U.S. at 458 (citing North Carolina v. Butler, 441 U.S. 369, 372-76,

99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979)). 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. Id. (citing Edwards, 451 U.S. at

484-85). As mentioned, this “second layer of prophylaxis for the Miranda right to counsel”

is “designed to prevent police from badgering a defendant into waiving his previously

asserted Miranda rights[.]” Id. (quoting McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.

Ct. 2204, 115 L. Ed. 2d 158 (1991), and Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct.

1176, 108 L. Ed. 2d 293 (1990)). “But if a suspect makes reference to an attorney that is

ambiguous or equivocal in that a reasonable police officer in light of the circumstances

would have understood only that the suspect might be invoking the right to counsel, our

precedents do not require the cessation of questioning.” Davis, 512 U.S.at 459. “The

likelihood that a suspect would wish counsel to be present is not the test for applicability of

Edwards.” Id. (quoting McNeil, 501 U.S. at 178).

¶35.   Davis strikes a balance between the Miranda “procedural safeguards,” that are “not

themselves rights protected by the Constitution” but measures “to insure the right against

self-incrimination [is] protected,” and society’s interest for effective law enforcement.

Davis, 512 U.S. at 457-61. Davis explained:

       In considering how a suspect must invoke the right to counsel, we must
       consider the other side of the Miranda equation: the need for effective law

                                              15
       enforcement. Although the courts ensure compliance with the Miranda
       requirements through the exclusionary rule, it is police officers who must
       actually decide whether or not they can question a suspect. The Edwards
       rule—questioning must cease if the suspect asks for a lawyer—provides a
       bright line that can be applied by officers in the real world of investigation and
       interrogation without unduly hampering the gathering of information. But if
       we were to require questioning to cease if a suspect makes a statement that
       might be a request for an attorney, this clarity and ease of application would
       be lost. Police officers would be forced to make difficult judgment calls about
       whether the suspect in fact wants a lawyer even though he has not said so, with
       the threat of suppression if they guess wrong. We therefore hold that, after a
       knowing and voluntary waiver of the Miranda rights, law enforcement officers
       may continue questioning until and unless the suspect clearly requests an
       attorney.

Id. at 461.

¶36.   This Court may institute whatever rules and procedural safeguards it deems necessary

to ensure the rights guaranteed by the Mississippi Constitution are secured. But we must be

careful and circumspect in doing so, as we may neither enlarge nor modify these rights. We

must also be accurate when construing or speaking to our constitutional provisions, as the

misstatements in Johnson, Gray, and McGilberry illustrate.

¶37.   Never has this Court held that the Mississippi Constitution provides greater protection

than the U.S. Constitution to criminal suspects who invoke the right of counsel during

custodial interrogations. Indeed, have we consistently used federal cases as guidance with

regard to the Edwards rule. See Holland, (relying on the Eleventh Circuit) and Barnes

(relying on the Supreme Court).

                                      CONCLUSION

¶38.   We affirm the Scott County Circuit Court’s judgment of conviction and sentence.




                                              16
¶39. CONVICTION OF ARSON AND SENTENCE OF EIGHTEEN (18) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. THE APPELLANT SHALL PAY A FINE IN THE AMOUNT OF
$1,500, RESTITUTION TO THE OWNERS OF THE DWELLING HOUSE IN THE
AMOUNT OF $10,000, AND RESTITUTION TO THE VICTIM IN THE AMOUNT
OF $3,000. THE FINE, RESTITUTION TO THE OWNERS OF THE DWELLING
HOUSE, AND RESTITUTION TO THE VICTIM SHALL BE MADE IN MONTHLY
INSTALLMENTS, TO THE CIRCUIT CLERK OF SCOTT COUNTY, MISSISSIPPI,
IN THE AMOUNT OF $150 WITH THE FIRST PAYMENT DUE NINETY (90) DAYS
FOLLOWING RELEASE. APPELLANT SHALL BE GIVEN CREDIT FOR
THIRTEEN (13) DAYS OF JAIL TIME SERVED.

     WALLER, C.J., RANDOLPH, P.J., AND CHANDLER, J., CONCUR. LAMAR
AND COLEMAN, JJ., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE
WRITTEN OPINION. KITCHENS, J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.,
AND KING, J.

    KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶40.   Because the Mississippi Constitution provides greater protection to criminal suspects’

invocation of counsel during interrogations than does the United States Constitution and

because the plurality attempts to undermine the sound constitutional analysis of Downey v.

State, 144 So. 3d 146 (Miss. 2014), and Holland v. State, 587 So. 2d 848 (Miss. 1991), I

decline to endorse the plurality’s logic, which relies upon incorrect statements of Mississippi

law and inapplicable federal precedents. Instead, I respectfully provide the correct analysis

of Franklin’s invocation of counsel under the Mississippi Constitution and this Court’s

precedent in Downey and Holland.

¶41.   During the suppression hearing, the trial court questioned Inspector Tom Rigby, the

law enforcement officer who had interrogated Franklin. Rigby provided the following

information regarding Franklin’s claimed invocation of counsel:


                                              17
Q. At what point in time of the interview was it that he said that he needed
some help?

A. It was, to the best of my knowledge, Your Honor, it was closer to the end.

Q. Close to the end?

A. Yes, sir.

Q. Now, the Miranda warning, the waiver of the rights – well, the Miranda
warning was that he had the right to have an attorney.

A. Yes, sir.

Q. Did you advise him of that?

A. Yes, sir, I did.

Q. And did he respond to that when you told him that?

A. He understood it, Your Honor . . . .

Q. Now, when you advised him of his right to have an attorney, was that
before he said he needed some help?

A. Yes, sir, yes, sir, it was.

Q. It was before that?

A. Uh-huh. Yes, sir.

Q. It was after you told him that he could have an attorney, he said he needed
some help?

A. Yes, sir.

Q. Now, Mr. Rigby, tell me, was he asking for an attorney when he said he
needed some help?

A. No, sir, Your Honor, I didn’t take it that he was asking for an attorney. It
was something to his condition.



                                      18
       Q. Did he ever again at any time say he wanted an attorney?

       A. No, sir, to the best of my knowledge, he did not.

¶42.   It is undisputed that invocations of the right to counsel during the course of police

interrogation fall under Fifth Amendment-related jurisprudence. Davis v. United States, 512

U.S. 452, 456-57, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). Under rights attendant to the

Fifth Amendment’s right against self-incrimination, if a person under arrest invokes his right

to counsel during the course of interrogation, interrogation must cease until an attorney is

present. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1880, 68 L. Ed. 2d 378,

386 (1981). The right to have an attorney present must be “specifically invoked.” Edwards,

451 U.S. at 482.

¶43.   In Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994),

the United States Supreme Court held that “the suspect must unambiguously request

counsel.” Id. at 459 (emphasis added). Thus, the accused’s Fifth Amendment-related rights

do not “require law enforcement officers to cease questioning immediately upon the making

of an ambiguous or equivocal reference to an attorney.” Id.

¶44.   But, just as a right against self-incrimination is articulated in the Fifth Amendment to

the United States Constitution, U.S. Const. amend. V (“No person . . . shall be compelled in

any criminal case to be a witness against himself”), a similar right against self-incrimination

exists in Article 3, Section 26, of the Mississippi Constitution. Miss. Const. art. 3, § 26

(“[The accused] shall not be compelled to give evidence against himself.”).




                                              19
¶45.   In Downey v. State, 144 So. 3d 146 (Miss. 2014), an intellectually disabled and

functionally illiterate woman was arrested and taken into custody for burglary of a dwelling.

Id. at 149. The arresting officer read Downey her Miranda3 rights and the following

exchange occurred:

       Officer: Now we are going to talk for a just a little bit, ok, and then I’m gonna
       try and get you a bond set, stuff like that or whatever we need to do so we can
       get you on out of this jail, ok? (Officer points out Miranda rights on paper,
       and reads them aloud.) You haven’t been promised or threatened anything,
       have you? Nobody’s treated you bad or anything? They treated you good at the
       jail last night?

       Downey: Yeah, but I didn’t sleep last night.

       Officer: Nancy can you put your signature right there for me in those two
       spots?

       Downey: (signs the paper) I got a lawyer.

       Officer: Do what?

       Downey: I got a lawyer.

       Officer: Who is that?

       Downey: Brad Sullivan.

       Officer: Brad who?

       Downey: Brad Sullivan. He works at Trustmark Bank.

       Officer: Do you want to talk to me or do you want to use him? I’ve got to
       know that okay?

       Downey: I could use him.




       3
       Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              20
       Officer: Is he a tall guy? Real tall young man? I know a Brad, but I don’t think
       he is a Sullivan. But he works there at the bank. He works for Sullivan and
       Sullivan? Brad Thompson?

       Downey: Yeah.

       Officer: How does he represent you?

       Downey: He did me . . . when we had a wreck.

       Officer: That’s fine, Nancy, but what I need to know is do you want to talk to
       me now. . . . I mean I don’t know if I can get him over here right this minute.
       Do you want to talk with me now, without him, or do you want to wait for
       him?

       Downey: I’ll talk with you.

Id. at 149-50. At issue in Downey was whether the suspect’s saying “I got a lawyer” and “I

could use him” invoked her right to remain silent until an attorney was present. Id. at 152.

The plurality opines that “it is . . . arguable that Downey’s statement met the requisite level

of clarity required by Edwards. Therefore, neither Davis nor [sic] Holland was applicable.”

(Pl. Op. at ¶31). At the time this Court decided Downey, both the majority and the dissent

— having been joined by Justice Pierce — agreed that Downey’s statements were

insufficient to invoke her right to counsel under federal law. See Downey, 144 So. 3d

(applying a test used to specifically to identify “ambiguous” invocations of counsel); id. at

154 (Coleman, J., dissenting). More specifically, the dissent averred that “[l]ike the Supreme

Court of the United States in Davis, we too should decline to ‘require law enforcement

officers to cease questioning immediately upon the making of an ambiguous or equivocal

reference to an attorney.’ In the case sub judice, the defendant made ambiguous statements

regarding counsel, and the officer asked questions to clarify the ambiguity.” Id. at 154

                                              21
(Coleman, J., dissenting) (quoting Davis, 512 U.S. at 459). Thus, at the time Downey was

decided, it was undisputed by anyone on this Court that Downey’s invocation of counsel

failed to meet the standard articulated by the United States Supreme Court in Davis, that an

invocation of counsel must be “unambiguous.” Davis, 512 U.S. at 459.

¶46.   However, the majority of this Court in Downey declined to be constrained by the

federal standard articulated in Davis, upon which today’s plurality relies extensively. (Pl. Op.

¶¶ 26-27; 35-36) (block-quoting the precedent in Davis). We held that “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 minimum standards of

constitutionality and more strictly enforce the right to counsel during custodial

interrogations.” Id. at 151; compare with (Pl. Op. at ¶ 37) (“Never has this Court held that

the Mississippi Constitution provides greater protection than the federal constitution to

criminal suspects who invoke the right of counsel during custodial interrogations.”). The

Mississippi Constitution protects the invocation of the right to counsel during the course of

interrogation, whether the criminal suspect’s invocation is ambiguous or unambiguous. Id.

We explicitly declined to adopt the test of whether an invocation of counsel was

“unambiguous” in accordance with Davis, holding instead that “[t]he three-part test

established in Holland adequately guards the right to counsel for custodial suspects who may

not know that the right to counsel must be unambiguously asserted, or that the right exists

regardless of the amount of time it might take to obtain counsel.” Id. at 151. In other words,

in Mississippi, suspects who “because of fear, intimidation, lack of linguistic skills, or a



                                              22
variety of other reasons . . . will not [unambiguously] articulate their right to counsel

although they actually want to have a lawyer present” nevertheless enjoy constitutional

protection. Davis, 512 U.S. at 460.

¶47.   This Court therefore endorsed a three-part test to determine whether a trial court erred

in failing to suppress a criminal defendant’s confession or statement taken after his or her

invocation of the right to counsel during the course of custodial interrogation: (1) whether

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

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

without counsel, whether there was a valid Miranda waiver. Downey, 144 So. 3d at 150-53;

see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

¶48.   The plurality opines that the Holland test results in a legal nullity, because the third

prong requires that there be a valid Miranda waiver, a universal prerequisite for a valid

custodial interrogation. (Pl. Op. ¶31) (“[W]hat must be gleaned from Davis is that Davis’s

instruction that law enforcement officers may continue questioning a suspect until and unless

the suspect clearly requests an attorney, is realized on the understanding that ‘the primary

protection afforded suspects subject to custodial interrogation is the Miranda warnings

themselves’. This clearly adjoins with the third prong related in Holland: if interrogation

continued without counsel, was there a valid Miranda waiver?”) (internal quotations

omitted). This criticism of Holland belies logic and strains credulity. The third prong of the

Holland test does not address the initial waiver of rights under Miranda. Instead, it

addresses any and all statements given to police after the suspect’s invocation of a right to



                                             23
counsel. Holland, 587 So.2d at 860. As the plurality concedes (Pl. Op. ¶31), the United

States Supreme Court has held

       when an accused has invoked his right to have counsel present during custodial
       interrogation, a valid waiver of that right cannot be established by showing
       only that he responded to further police-initiated custodial interrogation even
       if he has been advised of his rights. We further hold that an accused . . . having
       expressed his desire to deal with the police only through counsel, is not subject
       to further interrogation by the authorities until counsel has been made available
       to him, unless the accused himself initiates further communication, exchanges,
       or conversations with the police.

Edwards, 451 U.S. at 482. In light of federal precedent requiring that the government show

a “valid waiver” to continue questioning after an accused has invoked his right to counsel (or,

as is more commonly known, one of his Miranda rights), why then would Mississippi law,

specifically discussing invocations of a right to counsel during police questioning, look to

the original Miranda waiver, read at the beginning of the interrogation, and not to the

required subsequent waiver of his specifically invoked Miranda rights? For example, the

majority in Downey specifically quoted this exchange:

       Officer: That’s fine, Nancy, but what I need to know is do you want to talk to
       me now. . . . I mean I don’t know if I can get him over here right this minute.
       Do you want to talk with me now, without him, or do you want to wait for
       him?

       Downey: I’ll talk with you.

Downey, 144 So. 3d at 150. The fact is that the analysis for a valid waiver of Miranda rights

prior to interrogation and a valid waiver of rights after they have been invoked during the

course of interrogation closely resemble each other. This is because both analyses focus on

competency and voluntariness. However, to suggest, as the plurality does, that Holland has



                                              24
been subsumed into federal case law because it merely looks to the voluntariness of the

original Miranda waiver is inaccurate.

¶49.   Turning to the analysis that this Court articulated in Downey and Holland, in order

for us to decide whether Franklin’s rights were violated, we first must determine whether

Franklin invoked his right to counsel. Unambiguous invocations of one’s right to counsel are

readily identifiable and usually involve a suspect’s saying “I want a lawyer.” See Downey,

144 So. 3d at 151; accord Smith v. Illinois, 469 U.S. 91,105 S. Ct. 490, 493, 83 L. Ed. 2d

488 (1984) (per curiam) (“[A] statement either is such an assertion of the right to counsel or

it is not.”). Equivocal or ambiguous requests for counsel require more consideration because

there is no bright-line rule about what types of statements constitute equivocal requests for

counsel. Holland, 587 So. 2d at 856-57. Moreover, a request for counsel can occur any time

during the interrogation. Id. But “[a] defendant must articulate his desire to have counsel

present sufficiently clearly that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney.” Barnes v. State, 30 So. 3d 313, 317

(Miss. 2010). Accordingly, in Holland, this Court held that a suspect asking detectives

“Don’t you think I need a lawyer?” invoked his right to counsel. Holland, 587 So. 2d at 856-

57. Similarly, in Downey, this Court determined that a suspect’s statements that she “had an

attorney” and “I could use him” were sufficient to invoke her right to counsel. Downey, 144

So. 3d at 151-52. Now we must determine whether Franklin articulated “his desire to have

counsel present sufficiently clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney.” Barnes, 30 So. 3d at 317.



                                             25
In the context of this particular interrogation, Franklin’s request for “help” was insufficient

to invoke counsel. A request for “help,” in the middle of the interrogation, could constitute

a call for any number of different types of aid, including medical, legal, or spiritual

assistance. It was not reasonable in this instance for Franklin to expect Inspector Rigby to

discern that the particular sort of help he wanted was that which could be provided by a

lawyer.

¶50.   The plurality bemoans that we must be careful in not modifying the rights secured by

the Mississippi Constitution. (Pl. Op. ¶ 36). The plurality also cautions that “[w]e must

. . . be accurate when construing or speaking to our constitutional provisions.” (Pl. Op. ¶36).

Yet the plurality misapplies and misstates a constitutional test articulated by a sound majority

of this Court in two of our prior decisions: Holland and Downey. With respect to the

plurality’s gross misapplication of the Mississippi Constitution, Downey, and Holland, I

respectfully dissent. To the extent that the plurality opinion inadvertently reaches the right

result under Mississippi law, I concur in that result.

       DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.




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