        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-00748-COA

JOSHUA TAYLOR A/K/A JOSHUA MIQUEL                                           APPELLANT
TAYLOR A/K/A JOSHUA M. TAYLOR

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          04/21/2017
TRIAL JUDGE:                               HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED:                 LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                           BY: ERIN ELIZABETH BRIGGS
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: KAYLYN HAVRILLA McCLINTON
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 10/15/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.

       TINDELL, J., FOR THE COURT:

¶1.    On July 26, 2011, a Lowndes County jury convicted Joshua Taylor of one count of

capital murder for the death of William Stallings. Taylor appeals his conviction, asserting

that the circuit court erroneously refused to give a lesser-included-offense jury instruction

for second-degree murder and erroneously denied his motion to suppress statements he made

to investigating officers. Because we find that Taylor’s claims lack merit, we affirm his

conviction and sentence.

                                          FACTS
¶2.    On the night of May 19, 2011, Stallings went to visit his friend Michael Love. Love

lived with his mother, Shirley, and his two siblings in a home in Lowndes County. Both of

Love’s siblings were out of town at the time. Stallings and Love went to sleep around 1 a.m.

¶3.    Around 3 a.m., Love awoke to a loud banging on the front door. At first, Love

assumed the sound was his siblings returning home. But when he went to inspect the noise,

he found the front door wide open. Love exited the house but then heard a gunshot. Fearing

for his safety, he ran into the woods and called 9-1-1.

¶4.    Around the same time, Shirley heard “a big boom” and assumed her son had returned

home. She opened her bedroom door to look but instead saw several men she did not

recognize as well as part of a gun. Shirley slammed her door shut and fell to the floor.

Shirley testified she then heard a gunshot before the men forcibly entered her room and

rummaged through her purse. Afraid, Shirley began crying and praying. The men told her

to shut up before finally leaving. A few minutes later, she heard another gunshot and

remained on her bedroom floor until Love returned to the trailer. After Love returned, he and

Shirley found Stallings dead due to a gunshot wound to the head.

¶5.    Investigator Eli Perrigin, a member of the Lowndes County Sheriff’s Department,

investigated the shooting. After following up on several leads, Perrigin made multiple arrests

in connection with the incident. After making these arrests, Perrigin soon received a call

from an Alabama citizen who wished to speak about the investigation. The call came from

Lacee Cox, Taylor’s girlfriend of over a year. Fearing that the police had arrested the wrong

suspects, Cox called to inform them about Taylor’s activities on the night in question. Cox



                                              2
also gave Perrigrin Taylor’s name as well as the names of Brandon Brown, Richard Lee,

Johnny Brock, and Cameron Merriweather.

¶6.    Perrigin decided to investigate the information Cox provided and first questioned

Merriweather about the night in question. Merriweather provided information that led

Perrigin to the remaining men, including Taylor. Brown, Lee, and Brock all gave similar

statements to the police regarding the incident.

¶7.    Perrigin first interviewed Taylor on May 27, 2011. Taylor received and signed a

Miranda1 waiver after Perrigin read Taylor his rights. This first interview was recorded, but

the recording has subsequently been lost. Perrigin did, however, write a narrative of the

interview in which Taylor initially denied any involvement in the incident but later confessed

that he had gone to Mississippi with his friends on the night of the incident. Taylor still

denied being involved with the break-in of the Loves’ home or Stallings’s death.

¶8.    Perrigin spoke to Taylor a second time on the same day, May 27, 2011. This

interview is the subject of Taylor’s motion to suppress that the circuit court denied. In this

interview, Taylor again signed a Miranda waiver after he was read his rights. On two

occasions during this interview, Taylor indicated that he did not wish to talk about the

incident anymore, but he never indicated that he wished for an attorney to be present. The

investigators continued the interrogation, believing that they were authorized to do so based

upon Taylor’s actions. Taylor continued his conversation with the officers and within

minutes admitted that he was the one who shot Stallings.



       1
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                              3
¶9.    The following day, Taylor accompanied police to the site of the incident to help them

find the discarded gun. Despite their best efforts, however, investigators were unable to find

the gun used. Perrigin spoke to Taylor one final time on June 2, 2011. Unlike his prior

interviews, Taylor initiated this interview himself. Taylor confessed that he felt bad for what

he had done and that he and Merriweather were the only ones who should be charged with

murder.

¶10.   At trial, Cox, Brown, Lee, and Brock all testified against Taylor. Cox testified that

on the night in question, she overheard Taylor, Brown, and Lee talking about going to “hit

a lick,” which Cox interpreted as “doing something that they didn’t need to be doing.”

Taylor dropped Cox off at work and later drove her 1999 Crown Victoria to pick up his

friends. When confronted by Cox the next day, Taylor admitted he and his friends had been

at a house when one of his friends kicked in a door. Cox also told the police that Taylor

initially admitted to shooting Stallings while he was asleep on the couch. Taylor later stated

that he did not participate in the shooting, and from that point on, Taylor gave Cox

conflicting stories by admitting to the murder and then denying participation.

¶11.   Brown, Lee, and Brock all presented similar accounts to the jury of what happened

on the night of Stallings’s murder. Taylor and the other men all decided to cross the

Alabama-Mississippi state line to purchase alcohol and drugs at a convenience store.

However, instead of going to the store, Taylor drove the group to Love’s house, where the

group believed they would purchase the marijuana. Merriweather was the first to exit the car

and knock on the door, but he received no answer. Merriweather then suggested moving the



                                              4
car out of sight because the design was similar to that of a police vehicle. After Taylor

moved the car, he and Merriweather went back to the door. Brown, Lee, and Brock stood

by the car at this time.

¶12.   Brown testified that after a while, he and the others went to check on Taylor and

Merriweather because they had been gone awhile. Once Brown and the others had

approached the home, Brown stated that he saw Merriweather fire the gun at Shirley. After

Merriweather shot the gun, Taylor took the gun from him and proceeded down the hallway

toward Love’s room. Brown testified that he, Lee, and Brock all left the home and walked

back to the car. Later, the men heard a second gunshot and saw Merriweather and Taylor

running from the house. The three men all testified that Taylor admitted to the group that he

had shot Stallings and demanded they all keep quiet about that night.

¶13.   Taylor argued at trial that his confession to Perrigrin was not voluntary because he had

invoked his right to remain silent twice, yet investigators ignored it. Taylor also requested

jury instructions for the lesser-included offenses of first- and second-degree murder. The

circuit court gave an instruction for first-degree murder but refused to give an instruction for

the lesser-included offense of second-degree murder. The jury ultimately found Taylor guilty

of one count of capital murder on July 26, 2011, and the circuit court sentenced him to life

without eligibility for parole.

¶14.   Aggrieved, Taylor now appeals his conviction and sentence.

                                  STANDARD OF REVIEW

¶15.   “We review a [circuit court’s refusal to give] a lesser-included-offense jury instruction



                                               5
de novo.” Smith v. State, 171 So. 3d 542, 546 (¶9) (Miss. Ct. App. 2015).

¶16.   When we review a court’s decision to deny a motion to suppress a confession,

       we apply the familiar general rule that since the court sits as the fact-finder
       when determining the issue of whether an accused’s confession has been
       intelligently, knowingly, and voluntarily given, we will only reverse the court’s
       determination of this issue when such determination is manifestly wrong.

Keller v. State, 138 So. 3d 817, 835 (¶16) (Miss. 2014). “[W]e will not disturb the court’s

determination on the admissibility of a confession unless the court applied an incorrect legal

standard, committed manifest error, or rendered a decision which was contrary to the

overwhelming weight of the evidence.” Id.

                                       DISCUSSION

       I.     Lesser-Included Offense

¶17.   Upon review, we find no error in the circuit court’s refusal to give a jury instruction

on the lesser-included offense of second-degree murder. A criminal defendant is entitled to

jury instructions supporting his theory of the case but only where sufficient evidence supports

such instructions. Gilmore v. State, 119 So. 3d 278, 286 (¶13) (Miss. 2013). The Mississippi

Supreme Court has held:

       Our law is well-settled that jury instructions are not given unless there is an
       evidentiary basis in the record for such. . . . To warrant the lesser-included-
       offense instruction, a defendant must point to some evidence in the record
       from which a reasonable jury could find him not guilty of the crime with
       which he was charged and at the same time find him guilty of a lesser-included
       offense.

Goodnite v. State, 799 So. 2d 64, 69 (¶24) (Miss. 2001) (citation omitted) (emphasis added).

Therefore, for a lesser-included-offense instruction to be appropriate, Taylor had to show



                                              6
sufficient evidence that a reasonable jury could find him not guilty of capital murder but still

find him guilty of second-degree murder. See Smith, 171 So. 3d at 546 (¶9). When

determining the propriety of a lesser-included-offense instruction, “[w]e must view the

evidence in the light most favorable to the defendant.” Gilmore, 119 So. 3d at 286 (¶13).

Also, “lesser-included-offense instructions should not be [given] on mere speculation.”

Franklin v. State, 136 So. 3d 1021, 1026-27 (¶11) (Miss. 2014). We will only reverse the

circuit court’s refusal to give a lesser-included-offense instruction in circumstances where

an evidentiary basis for the instruction exists in the record. Lee v. State, 469 So. 2d 1225,

1230-31 (Miss. 1985).

¶18.   Taylor was originally indicted for capital murder but now argues that he was entitled

to a lesser-included-offense instruction for second-degree murder. Second-degree murder

requires some evidence that the defendant killed the victim “in the commission of an act

eminently dangerous to others and evincing a depraved heart, regardless of human life,

although without any premeditated design to effect the death of any particular individual.”

Miss. Code Ann. § 97-6-19(1)(b) (Supp. 2018) (emphasis added). Behavior constituting a

depraved heart has been described as “conduct so gross as to be tantamount to a wanton

disregard of, or utter indifference to, the safety of human life.” Nichols v. State, 27 So. 3d

433, 440 (¶20) (Miss. Ct. App. 2009) (quoting Montana v. State, 822 So. 2d 954, 966-67

(¶55) (Miss. 2002)).

¶19.   Capital murder, on the other hand, is defined as “[t]he killing of a human being

without the authority of law by any means or in any manner . . . [w]hen done with or without



                                               7
any design to effect death, by any person engaged in the commission of . . . burglary. . . .”

Miss. Code Ann. § 97-3-19(2)(e) (Supp. 2018). Unlike simple murder and other categories

of capital murder, the State is not required to prove malice to obtain a conviction for capital

murder under section 97-3-19(2)(e). Ronk v. State, 172 So. 3d 1112, 1126 (¶23) (Miss.

2015). As long as a reasonable jury could find that the defendant was engaged in the

commission of one of the underlying felonies listed in section 97-3-19(2)(e), which includes

burglary, and the victim’s death resulted, the defendant is guilty of capital murder. See id.

at 1127, 1130 (¶¶25, 35) (citing Jacobs v. State, 870 So. 2d 1202, 1209 (Miss. 2004)). But

if sufficient evidence is presented that separates the defendant from the underlying felony,

the defendant may be entitled to lesser-included-offense instructions. See id. at 1127-28

(¶27). Therefore, to warrant a second-degree-murder instruction, Taylor would have had to

point to some evidence in the record that separated him from the underlying felony of

burglary associated with the killing.

¶20.   As previously stated, the jury heard testimony from Taylor’s girlfriend, Cox, Brown,

Lee, and Brown. Lacee Cox testified that Taylor went to the trailer “to hit a lick” and that,

after entering the trailer, Taylor shot a man who was lying on a couch. Brown, Lee, and

Brock all testified similarly regarding the night of the crime. Each testified that the group

went to the trailer to get marijuana. Taylor and Merriweather both knocked on the trailer

door and then disappeared behind the trailer. Brown testified that, after hearing a gunshot,

he went behind the trailer and saw that the door appeared to have been kicked open. Brandon

then saw Taylor take a gun from Merriweather. Brown returned to the car with Lee and



                                              8
Brock, and then the three men heard a second gunshot. They testified to seeing Taylor and

Merriweather run out of the trailer after the second shot was fired, with Taylor still in

possession of the gun. Taylor then told the men, “I shot a guy, I shot a guy,” and for them

not to speak to anyone about the incident. Merriweather testified only that he knew Taylor,

Brown, Lee, and Brock and invoked his Fifth Amendment rights as a co-defendant to capital

murder. Taylor did not testify at trial but did give a statement to law enforcement that he and

Merriweather were in the trailer that night. He also stated that he took a gun from

Merriweather and used the gun to shoot Stallings. At the close of trial, the circuit court

refused to give Taylor’s second-degree-murder instruction by stating:

       If you’re in a house where you don’t have the right to be in the middle of the
       night and you shoot a gun and you kill somebody, how can that be second-
       degree murder? I think there’s caselaw that says that can’t be. I mean the only
       evidence before the jury is that he was in the house and they had obtained entry
       by apparently kicking the door in. I think they’ve submitted a first-degree
       murder and it was a lesser—I don’t see how you can get a second-degree
       murder so I’m going to refuse [proposed defense instruction 1].

¶21.   We agree that Taylor fails to make a sufficient showing of evidence whereby a

reasonable jury could have acquitted him of capital murder and then convicted him of

second-degree murder. Taylor’s only piece of evidence justifying the second-degree-murder

instruction was his statement to investigators that “he did not intend to shoot [Stallings] and

that he simply shot the gun as a way to wake up [Stallings] from his sleep.” This evidence,

however, does not separate Taylor from the burglary. Sufficient evidence existed to show

that Taylor gained entry into the house by force and was there to “hit a lick.” This certainly

could lead a jury to find Taylor guilty of burglary, and the fact that Stallings died as a result



                                               9
elevates the crime to capital murder.

¶22.   Viewing the evidence in a light most favorable to Taylor, we find no evidentiary basis

upon which a reasonable jury could find Taylor not guilty of capital murder but guilty of

second-degree murder. We therefore find no error in the circuit court’s decision to refuse

to give this lesser-included-offense instruction.

       II.     Motion to Suppress

¶23.   We also find no error in the circuit court’s determination that Taylor’s confession was

knowingly, intelligently, and voluntarily given. We therefore affirm the denial of Taylor’s

motion to suppress his comments to investigators.

¶24.   As the United States Supreme Court established in Miranda v. Arizona, 384 U.S. 436,

444 (1966), a defendant must be advised of his right to remain silent and his right to an

attorney before any police questioning can take place during custodial interrogation. Once

informed of these rights, an accused may waive them if he so desires and respond to

questioning. Jordan v. State, 995 So. 2d 94, 106 (¶30) (Miss. 2008). “Waiver of the

constitutional rights to remain silent and to counsel must be knowing, [intelligent,] and

[voluntary].” Moore v. State, 2017-KA-00379-SCT, 2019 WL 4316161, at *3 (¶21) (Miss.

May 30, 2019). “[A] waiver is knowing and intelligent if it is made with a full awareness

both of the nature of the right being abandoned and the consequences of the decision to

abandon it.” Brown v. State, 130 So. 3d 1074, 1079 (¶11) (Miss. 2013) (citing Coverson v.

State, 617 So. 2d 642, 646 (Miss. 1993)) (internal quotations marks omitted). “Waiver is

considered voluntary if it is the result of a free and deliberate choice rather than intimidation,



                                               10
coercion[,] or deception.” Roberts v. State, 234 So. 3d 1251, 1260 (¶22) (Miss. 2017)

(internal quotation marks omitted).

¶25.   “We will not disturb a court’s denial of a motion to suppress unless the incorrect legal

principle was applied; if there was no substantial evidence to support a knowing,

[intelligent,] and [voluntary] waiver of Miranda rights; and if the denial was a result of

manifest error.” Tard v. State, 132 So. 3d 550, 552 (¶9) (Miss. 2014) (internal quotation

marks omitted). Taylor asserts in his brief that the circuit court applied the wrong standard

when reviewing his motion to suppress. But the record clearly reflects that the circuit court

considered the totality of the circumstances to determine whether the Miranda waiver was

knowing, intelligent, and voluntary. Tard, 132 So. 3d at 553 (¶11). “The totality of the

circumstances includes consideration of the defendant’s experience with the police and

familiarity with warnings; intelligence, including I.Q.; age; education; vocabulary and ability

to read and write in the language in which the warnings were given; intoxication; emotional

state; mental disease, disorder or retardation.” Roberts, 234 So. 3d at 1260 (¶23). “Because

the standard of manifest error is high, we will not reverse unless the trial court’s [admission]

contravened the substantial weight of the evidence.” Batiste v. State, 121 So. 3d 808, 858

(¶122) (Miss. 2013).

¶26.   The record reflects that Taylor was read his Miranda rights twice by officers. The

first time being his initial arrest, and the second, before he was questioned. The official

transcripts of Taylor’s interview with Sergeant Perrigin explicitly state that when asked if

Taylor understood his rights, he indicated “yes.”



                                              11
¶27.     The relevant portion of Taylor’s interview is when he makes the statement, “Man, I

don’t even want to talk about it no more, alright. I don’t want to talk about it no more.”

Taylor argues that this statement constitutes an invocation of his right to remain silent.

Taylor continued to speak with the officers present, despite his remarks, which the officers

did not interpret to be an invocation of the right to silence.

¶28.     Taylor relies on Jones v. State, 461 So. 2d 686 (Miss. 1984), to argue that his

statement was inadmissible due to the invocation of his Fifth Amendment rights. In Jones,

the defendant, a mildly mentally retarded individual, argued that his statement, “I prefer not

to speak on that,” constituted an invocation of his right to silence. Id. at 698-99. The

Mississippi Supreme Court ruled that based on Jones’s mental abilities, that statement was

sufficient to invoke his right to remain silent and ruled that officers had violated that right

by continuing to question him. Id. However, the case before us is distinguishable from

Jones.

¶29.     The supreme court in Jones determined that Jones’s mental retardation was the central

factor in the voluntariness of his confession. Id. at 696. In the case at hand, however,

Taylor’s listed IQ falls outside of the range for mental retardation.2 Therefore, Taylor has

no such basis to rely upon. Additionally, the circuit court established that Taylor functioned

at an average intellectual capacity. The circuit court judge also praised Taylor’s writing

ability with the documents he prepared and filed himself, stating that they appeared to be

prepared by “somebody who can educate himself and has educated himself.” Finally, the

         2
        The circuit court determined that Taylor’s IQ was 82, whereas Jones’s was between
60 and 70.

                                              12
circuit court in Jones determined that, based upon the testimony, “there [was] obviously no

doubt in the minds of [the officers] that Jones was invoking his constitutional privilege

against further self-incrimination.” Id. at 701. In the case sub judice, Taylor’s action gave

the officers no obvious indication that he wished to invoke his rights and continued to speak

with the officers.

¶30.   Again, whether a defendant knowingly, intelligently, and voluntarily waives his rights

is a factual question to be determined by the trial judge under the totality of the

circumstances.” McGowan v. State, 706 So. 2d 231, 235 (¶12) (Miss. 1997). Because the

trial judge sits as the finder of fact in these matters, we give great deference to the court’s

decision to admit such incriminating statements. Gillett v. State, 56 So. 3d 469, 484-85 (¶29)

(Miss. 2010). A heavy burden must be met in order to overturn an unfavorable ruling on a

defendant’s motion to suppress. Id. That burden has not been met here. Taylor was informed

of his rights twice by police, and yet he still decided to waive his rights. Taylor had the

intellectual capacity to know what he was doing, as he did not suffer from any form of mental

retardation. He likewise acted as though he fully understood his rights and continued

conversation with the officers, thus giving them no legitimate indication that he was invoking

his Miranda rights. Therefore, the circuit court determined, based upon the totality of the

circumstances, that Taylor’s statements were admissible.

¶31.   The dissent views Taylor’s statements as a clear expression of his right to remain

silent, which the police officers blatantly chose to ignore. Specifically, the dissent argues

that the both officers did understand Taylor’s words and behavior to mean that he had



                                              13
invoked his rights and chose to attack those rights. Therefore, the dissent argues that the

circuit court violated Taylor’s constitutional rights and committed reversible error by

allowing his confession into evidence. But where a trial court admits statements in potential

violation of a defendant’s Fifth Amendment rights, such admissions are still amenable to a

harmless-error analysis. Hutto v. State, 227 So. 3d 963, 980 (¶49) (Miss. 2017). Further, to

be held harmless, we must determine that the violation of the defendant’s constitutional right

is harmless beyond a reasonable doubt. Id. The Supreme Court has determined that where

the weight of the evidence against the defendant is overwhelming, any potential violation of

the defendant’s constitutional rights may constitute harmless error. Id. Therefore, even

where Taylor’s statements could be considered an invocation of his rights, any potential

constitutional violation caused by the admission of his confession still amounts to harmless

error.

¶32.     Here, the record certainly reflects an overwhelming amount of evidence pointing to

Taylor as the perpetrator of the crime. The circuit court heard testimony from no less than

four witnesses placing Taylor in the trailer with the gun on the night of Stallings’s murder.

Brown, Lee, and Brock all specifically testified that Taylor took Cameron’s gun while in the

trailer and, after a second gunshot was fired, Taylor ran out of the trailer stating that he had

“shot a guy” and asking all the men not to speak about the incident. Such evidence convinces

this Court, beyond a reasonable doubt, that any potential constitutional violation against

Taylor would be harmless.

¶33.     The dissent argues that even “[i]f the evidence of guilt against the defendant is ample



                                               14
as the majority says, then reverse and remand, and let him have a trial free from the stain of

constitutional violations.” This argument, however, ignores one very important legal

concept. Taylor’s confession is not necessary for a jury to convict him of capital murder.

Regardless of the admissibility of Taylor’s statement, capital murder does not require Taylor

to have shot Stallings. Again, capital murder is defined as “The killing of a human being

without the authority of law by any means or in any manner . . . (e) When done with or

without any design to effect death, by any person engaged in the commission of . . . burglary

. . . or in any attempt to commit such [a] felon[y].” Miss. Code Ann. § 97-3-19(2)(e)

(emphasis added). For example, in Scarborough v. State, 956 So. 2d 382, 383 (¶5) (Miss.

Ct. App. 2007), the defendant testified that she and several friends concocted a plan to rob

the victim. During the commission of the robbery, two of the defendant’s friends killed the

victim. Id. at 384-84 (¶¶13-14). The defendant was ultimately convicted of capital murder

and appealed to this Court. Id. at 385 (¶15). The defendant argued that she did not

participate in killing the victim and therefore could not be convicted of capital murder. Id.

at 387 (¶27). In affirming the defendant’s conviction and sentence, we found:

       It is uncontroverted that [the defendant] administered no physical blows to [the
       victim]. However, the jury was charged with determining whether [the
       defendant] participated in the robbery of [the victim], not if she actually
       administered the blows which killed him. If it was determined that she did, in
       fact, participate in the robbery, then she could have been found guilty under
       the capital murder statute.

Id. at 386 (¶20). Pursuant to section 97-3-19(2)(e), the defendant admitted to participating

in the robbery, which led to the victim’s death, and therefore, a reasonable jury could have

found her guilty of capital murder. Id. at 387 (¶27).

                                             15
¶34.   The same can be said for Taylor. In the very same interview, prior to the statements

in question, Taylor confirmed that he and Cameron were burglarizing the trailer, which

resulted in Stallings’s death. Regardless of the admissibility of any statements made after

that point, Taylor participated in the underlying felony, and therefore, a reasonable jury could

easily find him guilty of capital murder beyond a reasonable doubt. Any potential

constitutional violation also amounts to harmless error for this reason.

¶35.   We are mindful of the Supreme Court’s recent decision in Moore v. State, 2017-KA-

00379-SCT, 2019 WL 4316161 (Miss. May 30, 2019). In Moore, the Supreme Court

reiterated that where a suspect expressly invokes his right to remain silent, all interviews

must cease. Moore, 2019 WL 4316161, at *5 (¶31). But where the investigating officers are

unsure whether a suspect’s rights have been invoked, we agree that the best practice is for

the officers “to stop questioning on any other subject and clarify with the suspect whether or

not he intends to invoke his constitutional right.” Id. While that practice did not occur here,

there was sufficient evidence to support a finding that the officers proceeded with the

interview believing that Taylor had not invoked his right to remain silent. Again, though, any

potential violation in admitting Taylor’s statements elicited by this conduct is harmless.

¶36.   Given the deference owed to the circuit court, we ultimately find that Taylor’s

statements fail to constitute an invocation of his right to silence. However, we also find,

beyond a reasonable doubt, that an overwhelming amount of evidence against Taylor exists,

making any potential violation of Taylor’s right to silence harmless.

¶37.   Finally, any error in admitting Taylor’s statements is also harmless because he



                                              16
admitted to participating in the burglary that then led to Stallings’s death. This evidence

alone is enough to sustain a conviction for capital murder.

¶38.   Therefore, taking into account the totality of the circumstances, this Court concludes

that the circuit court did not err in its decision to deny Taylor’s motion to suppress his

confession to police.

                                      CONCLUSION

¶39.   Taylor failed to establish an evidentiary basis warranting a second-degree murder

instruction. As such, the circuit court did not err in denying his request for the lesser-

included-offense instruction. Also, based on the totality of the circumstances, we find no

error in the circuit court’s decision to deny Taylor’s motion to suppress his statements to the

police officers. We therefore affirm the circuit court’s judgment and also affirm Taylor’s

conviction and sentence to life imprisonment without eligibility for parole.

¶40.   AFFIRMED.

      CARLTON, P.J., GREENLEE, LAWRENCE AND C. WILSON, JJ., CONCUR.
J. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE
WRITTEN OPINION, JOINED BY BARNES, C.J.; McDONALD, J., JOINS IN PART.
McDONALD, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT
SEPARATE WRITTEN OPINION. McCARTY, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY
WESTBROOKS AND McDONALD, JJ.

       J. WILSON, P.J., CONCURRING IN PART AND IN RESULT:

¶41.   I concur in part and in the result. I write separately to address the admissibility of

Taylor’s confession.

       I.     The admissibility of part of Taylor’s May 27, 2011 interview is
              unclear under current Mississippi Supreme Court precedent.


                                              17
¶42.   Taylor was informed of his Miranda rights at the outset of his May 27, 2011 interview

with Investigator Eli Perrigin and Lieutenant Tony Perkins, and he voluntarily waived those

rights and agreed to talk. The trial judge found that Taylor’s waiver and statements were

“voluntary,” and there is substantial evidence to support those findings. The issues on appeal

are whether Taylor sufficiently invoked his right to remain silent during the interview, and

if so, whether the remaining part of the interview was inadmissible for that reason. See Sipp

v. State, 936 So. 2d 326, 330-31 (¶¶6-8) (Miss. 2006) (distinguishing between statements that

are actually involuntary and statements that are “inadmissible due to some technical violation

of Miranda” or because an interrogation continued after a suspect invoked his Fifth

Amendment or Sixth Amendment rights).

¶43.   After Taylor voluntarily waived his Miranda rights, he discussed the facts surrounding

the burglary and Stallings’s murder at length. Taylor admitted that he took part in the

burglary and that Stallings was killed during the burglary. However, Taylor denied that he

shot Stallings. Perrigin and Perkins told Taylor that the four people who were with him and

his girlfriend had all stated that they witnessed Taylor shoot Stallings or heard him confess

to it. Taylor continued to deny shooting Stallings, while Perrigin and Perkins continued to

encourage him to come clean. At page 46 of the interview transcript, Taylor stated, “I didn’t

shoot that man though. Man, I don’t even want to talk about it no more, alright. I don’t want

to talk about it no more.” Perrigin and Perkins continued to ask questions. Taylor did not

answer but eventually asked, “Are y’all through now?” Perrigin and Perkins continued the

interview, and Taylor confessed to shooting Stallings.



                                             18
¶44.   In context, a reasonable officer could have interpreted Taylor’s comments as “an

expression of [his] frustration with [Perrigin’s and Perkins’s] failure to accept [his] repeated

insistence that he [did not shoot Stallings], rather than an unambiguous invocation of the

right to remain silent.” People v. Williams, 233 P.3d 1000, 1023 (Cal. 2010) (interpreting

similar statements by a suspect during an interview). Taylor waived his Miranda rights, he

admitted that he took part in the burglary, and he admitted that Stallings was killed during

the burglary. He engaged in a lengthy, voluntary discussion with Perrigin and Perkins.

Taylor repeatedly tried to persuade the officers that he did not shoot Stallings, but the officers

remained unpersuaded.        Under the circumstances, Perrigin and Perkins could have

understood Taylor’s comments that he did not “want to talk about it no more” as an

expression of frustration rather than an unambiguous invocation.

¶45.   Under the U.S. Constitution, officers are not required to stop questioning a suspect

based on ambiguous statements. In Davis v. United States, 512 U.S. 452 (1994), the

Supreme Court held that a “suspect must unambiguously request counsel” in order to invoke

his right to counsel under Miranda and Edwards v. Arizona, 451 U.S. 477 (1981). Davis,

512 U.S. at 459 (emphasis added). The Court declined to “require law enforcement to cease

questioning immediately upon the making of an ambiguous or equivocal reference to an

attorney.” Id. The Court also “decline[d] to adopt a rule requiring officers to ask clarifying

questions” in response to ambiguous remarks. Id. at 461. Rather, the Court held that

“officers have no obligation to stop questioning” a suspect unless the suspect unambiguously

and unequivocally requests counsel. Id. at 461-62. Subsequently, in Berghuis v. Thompkins,



                                               19
560 U.S. 370 (2010), the Court held that the same rules apply to a suspect’s invocation of the

right to remain silent. Id. at 381-82. That is, a suspect must invoke his right to remain silent

in unambiguous terms. Ambiguous comments do not require officers to cease questioning

or ask clarifying questions. Id.

¶46.   The state of the law is less clear under the Mississippi Constitution. In Holland v.

State, 587 So. 2d 848 (1991), our Supreme Court held that if a suspect makes an ambiguous

statement that could be interpreted as an invocation of his right to counsel, questioning must

cease except for limited questions tailored to clarify the ambiguity in the suspect’s statement.

Id. at 856-57. Holland involved a suspect’s ambiguous reference to an attorney, “but there

is no principled reason to adopt different standards for determining when an accused has

invoked the Miranda right to remain silent and the Miranda right to counsel.” Berghuis, 560

U.S. at 381; accord Moore v. State, No. 2017-KA-00379-SCT, 2019 WL 4316161, at *6

(¶33) (Miss. May 30, 2019) (“extend[ing]” Holland’s “same analysis,” at least in part, “to

cases involving the invocation of the right to remain silent”).

¶47.   The rule that the Mississippi Supreme Court adopted in Holland obviously differs

from the rule that the U.S. Supreme Court later adopted in Davis. After the U.S. Supreme

Court’s decision in Davis, our Supreme Court appeared to adopt Davis as controlling

authority for purposes of both the Mississippi Constitution and the U.S. Constitution. In

Barnes v. State, 30 So. 3d 313 (Miss. 2010), the Court discussed and seemingly followed

Davis’s holdings in rejecting a defendant’s claim that her statements were obtained in

violation of both the Mississippi Constitution and the U.S. Constitution. Id. at 316-18 (¶¶7-



                                              20
15). The Court’s opinion in Barnes did not mention its prior opinion in Holland.

¶48.   Four years later, however, our Supreme Court stated that the U.S. Supreme Court’s

decision in “Davis does not require Mississippi to follow the minimum standard that the

federal government has set for itself.” Downey v. State, 144 So. 3d 146, 151 (¶9) (Miss.

2014). In Downey, our Supreme Court stated that it would continue to follow Holland under

the Mississippi Constitution in order to “more strictly enforce the right to counsel during

custodial interrogations.” Id.

¶49.   The Mississippi Supreme Court revisited the issue again just one year later. In

Franklin v. State, 170 So. 3d 481 (Miss. 2015), a plurality of the Court followed Davis for

purposes of both the Mississippi and the U.S. Constitution. Id. at 487-91 (¶¶24-37) (plurality

op.). In addition, the plurality denied “that the Mississippi Constitution provides greater

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

during custodial interrogations.” Id. at 491 (¶37). However, it is not clear that a majority of

the Court agreed with the plurality’s conclusions. See id. at 492 (¶40) (Kitchens, J.,

concurring in part and dissenting in part) (arguing that Downey and Holland correctly

interpret the Mississippi Constitution).3

¶50.   Finally, in Moore, our Supreme Court discussed both Davis and Holland in the

context of a claim that police officers improperly questioned a suspect after he invoked his



       3
         In Franklin, all nine justices agreed that the defendant did not invoke his right to
counsel, that his statement was admissible, and that his conviction should be affirmed. Four
justices joined the plurality opinion. Two justices joined Justice Kitchens’s opinion
concurring in part and in the result and dissenting in part. Two justices concurred in the
plurality opinion in unspecified part and in the result without a separate opinion.

                                              21
right to remain silent. Citing Holland, the Court stated: “Mississippi law is well-established,

in cases involving the invocation of the right to counsel, that an interviewing officer may

clarify an ambiguous invocation [of the right to counsel]. Today, we extend this same

analysis to cases involving the invocation of the right to remain silent.” Moore, 2019 WL

4316161, at *6 (¶33) (emphasis added; citation omitted). However, the Court also discussed

Davis and its applicability in “the right-to-remain silent context.” Id. at *5 (¶¶31-32). And

the Court also referred to clarifying questions as “good police practice,” rather than a

constitutional requirement. Id. at *5 (¶31) (quoting Davis, 512 U.S. at 461). In addition, the

Court’s opinion in Moore did not cite either Downey or Franklin.4

¶51.   In light of our Supreme Court’s decisions in Downey, Franklin, and Moore, the state

of the law in Mississippi is, at least to me, unclear: If a suspect makes an ambiguous

statement that could be interpreted as invocation of his right to remain silent or right to

counsel, are officers limited to asking questions tailored to clarifying that ambiguity? Or may

officers continue the interrogation without limitation? The issue could be important in this

case because Taylor’s statements were at least ambiguous, and officers continued the

interview without asking clarifying questions. The issue is not outcome-determinative in this

case because, as explained below, any error in admitting portions of Taylor’s statement was

harmless. But the law on this issue should be clarified because clear rules for interrogations

are needed for “effective law enforcement.” Davis, 512 U.S. at 461. “Although the courts

       4
         In Moore, the defendant failed to argue in the trial court that his statement was
inadmissible because it was obtained after he invoked his right to remain silent. Moore,
2019 WL 4316161, at *5 (¶30). Therefore, the Supreme Court reviewed the issue only for
“plain error,” id., which may account for the ambiguity in the opinion.

                                              22
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.” Id. As the

law now stands, a reasonable officer in Mississippi would not know how he or she must

respond to an ambiguous statement that could be interpreted as an invocation.

       II.    Any error in admitting part of Taylor’s May 27, 2011 interview was
              harmless.

¶52.   In this particular case, any error in admitting part of Taylor’s statement to Perrigin and

Perkins was harmless for three reasons. First, Taylor was charged with capital murder for

a killing done during the commission of a burglary. Miss. Code Ann. § 97-3-19(2)(e) (Supp.

2018). Before Taylor ever said that he did not “want to talk about it no more,” he had

already admitted to knowingly participating in the burglary that resulted in Stallings’s death.

That was all that was necessary for the jury to convict of him of capital murder. “To find

[Taylor] guilty of capital murder, the jury did not need to find he was the shooter,” only that

he was a principal or accessory before the fact in the underlying felony of burglary. Dampier

v. State, 973 So. 2d 221, 231 (¶28) (Miss. 2008). Indeed, given Taylor’s admitted

participation in the burglary, “it is largely irrelevant who did the shooting.” Randall v. State,

716 So. 2d 584, 590 (¶32) (Miss. 1998).

¶53.   Second, Taylor confessed twice subsequently to shooting Stallings. On May 31, 2011,

four days after his initial confession, Taylor signed a written confession in which he again

admitted to shooting Stallings. Perrigin re-advised Taylor of his rights prior to that

statement, and Taylor signed a Miranda waiver. There was no evidence that Taylor’s May

31 statement was the product of any promises, threats, or coercion. Then, on June 2, 2011,


                                               23
Taylor asked to see Perrigin. When Taylor was brought to Perrigin’s office, he told Perrigin

that he wanted to take full responsibility for the murder and that he felt bad for what he had

done. This meeting occurred at Taylor’s request, and again there was no evidence that the

confession was the product of any promises, threats, or coercion. These subsequent

confessions raise different issues, which Taylor does not address on appeal. See Oregon v.

Elstad, 470 U.S. 298, 318 (1985) (holding that an initial statement that is voluntary but

“technically” obtained “in violation of Miranda” does not necessarily require suppression of

a later statement that is “voluntarily made”); Martin v. Wainwright, 770 F.2d 918, 928 (11th

Cir. 1985) (holding that Elstad applies whether the suspect’s initial statement was un-warned

or obtained after the suspect invoked his rights under Miranda), modified on other grounds

on denial of reh’g, 781 F.2d 185 (11th Cir. 1986), abrogation on other grounds recognized

by Coleman v. Singletary, 30 F.3d 1420, 1424-25 (11th Cir. 1994). Given that Taylor has

not provided any argument for suppressing his subsequent confessions, the admission of his

initial confession is, at most, harmless error.

¶54.   Third, as the majority notes, Brown, Lee, and Brock all testified that Taylor admitted

to him that he shot a man inside the Loves’ home. Taylor’s girlfriend, Cox, also testified that

Taylor admitted to shooting a man during the burglary. Thus, there was ample evidence that

Taylor was the shooter even without his confession.5 Therefore, any error in the admission

of portions of his interview with Perrigin and Perkins was harmless.

                                      CONCLUSION

       5
        Moreover, as noted above, Taylor was guilty of capital murder regardless of whether
he was the shooter. Dampier, 973 So. 2d at 231 (¶28); Randall, 716 So. 2d at 590 (¶32).

                                              24
¶55.   I concur in part and in the result. Based on our Supreme Court’s decisions in Downey,

Franklin, and Moore, I am uncertain whether the latter part of Taylor’s May 27, 2011

interview was admissible. But I agree with the majority that any error in the admission of

that part of the interview was harmless.

     BARNES, C.J., JOINS THIS OPINION.                    McDONALD, J., JOINS THIS
OPINION IN PART.

       McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

¶56.   “If the individual indicates in any manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must cease.” Miranda v. Arizona, 384 U.S.

436, 473-74 (1966). There may be no clearer statement of law than that one, made fifty-one

years ago. Our Court today does not just ignore those clear words but also pretends they do

not apply. I refuse to take that passive approach to a cornerstone of American constitutional

law.

¶57.   Writing for the majority in Miranda, Chief Justice Warren explained that “if the

individual is alone and indicates in any manner that he does not wish to be interrogated, the

police may not question him.” Id. (emphasis added). “The mere fact that he may have

answered some questions or volunteered some statements on his own does not deprive him

of the right to refrain from answering any further inquiries until he has consulted with an

attorney and thereafter consents to be questioned.” Id.

¶58.   Far from being a muddled area of law, the exact scenario faced in this case by Taylor

was addressed decades ago.        Miranda was decided to preempt the haranguing he

experienced, which was routine until the U.S. Supreme Court ruled that it violated multiple


                                             25
rights under our Constitution. What happened in this interrogation would not have been

tolerated in 1966 and should not be tolerated in 2019:

       [Investigator Perrigin]: Maybe, you were rushing out of there and maybe you
       tripped like he said. But, we need to get down to the point and you need to be
       telling us.

       [Officer Perkins]: Maybe you were doing the same thing that they were doing
       at the other end and you just shot to scare him. And didn’t actually mean to
       shoot him. I don’t know, but, something happen.

       [Investigator Perrigin]: That’s exactly what it is.

       [Officer Perkins]: To cause you to shoot him or to warn him or whatever.

       [Joshua Taylor]: I didn’t shoot that man though. Man, I don’t even want to talk
       about it no more, alright. I don’t want to talk about it no more.

(State’s Ex. 4, at 46) (emphasis added).6

¶59.   Under the clear wording of a fifty-year old decision, the interrogation must have

stopped at this time. Yet the officers did not hesitate, and they immediately continued their

interrogation. In fact, the suspect barely got the words, “I don’t want to talk about it no

more,” out before the officers launched back in. Taylor was no longer even responding:

       [Investigator Perrigin]: So, you going to lay in there [in that cell] tonight all
       night long.

       [Officer Perkins]: Whether we talk about it anymore, don’t really matter.
       Cause, its weighing heavy on your chest and you going to feel down until you
       tell the truth. I mean you can sit here and lie to me. You can sit here and lie
       to Eli [Perrigin], not tell us the whole truth. You can’t lie to yourself, it’s
       going to eat you up inside.

       [Investigator Perrigin]: You know that.

       6
         The transcription was provided by the State, and we have retained the language it
used to describe the defendant’s body language in the interview.

                                              26
       [Officer Perkins]: It’s going to eat you up, it’s already has been. That’s why
       you broke down and cried to her. It’s going to break you down. It’s going to
       hurt yourself.

       [period of silence for a few seconds]

       [Investigator Perrigin]: Come on and talk to me alright. Tell me what you’re
       thinking.

(State’s Ex. 4, at 46-47) (emphasis added).

¶60.   The officers’ own questions show two things: first, the police knew the suspect had

invoked his right to silence because, second, they were attacking it. Their attack was on two

fronts—(1) by saying his silence “don’t really matter” because he secretly wanted to talk to

them but did not and (2) by saying, “Come on and talk to me alright.” A person does not say

“come on and talk to me” unless someone has already told you he does not want to talk to

you and has gone quiet.

¶61.   So, the officers knew that the Miranda right had been invoked but chipped away at

it, like pulling down sandbags piled up on a levee, until the floodwaters of a confession

inevitably breached. There were long stretches of complete silence, during which Taylor did

not say a word. Indeed, after his unequivocal invocation of the right to silence, Taylor did

not speak for five minutes and forty-four seconds. During this period of complete silence on

his behalf, the officers asked dozens of increasingly heated questions.

¶62.   After those nearly six minutes of silence, Taylor gave in. Emotionally exhausted and

visibly crying, Taylor gave up the confession so doggedly sought by the police after

consciously violating his constitutional rights:



                                               27
       [Officer Perkins]: You’ll feel better once you say it.

       [Investigator Perrigin]: Just tell us what happen dude.

       [Officer Perkins]: We’re sitting right here looking at you.

       Taylor: [puts his head down on the interrogation room table]

       [Officer Perkins]: We know, we can tell it. It’s all over you man and you’re
       wanting to tell it, you’re wanting to tell it.

       [At this point the defendant in this case covers his face with his hands, and
       begins to cry.]

       [Investigator Perkins]: It’s about to kill you, just tell us.

       Taylor: [shaking his head]

       [Investigator Perrigin]: What happen[ed]?

       [Officer Perkins]: You shot him?

(State’s Ex. 4, at 49). Again, this vigorous shakedown happened after the defendant said,

“Man, I don’t even want to talk about it no more, alright. I don’t want to talk about it no

more.” And it happened during a nearly six minute patch of silence by the suspect.

¶63.   Under any reading of the cornerstone 1966 interpretation of constitutional law, this

is a violation of the rights of the suspect.

¶64.   Even if we continue to pretend that these two officers somehow did not understand

what they were doing, which they did, they failed to adhere to the best practices our Supreme

Court reiterated earlier this year. “When law enforcement officers are unsure whether a

suspect intends to invoke his right to remain silent, it is good police practice for the

interviewing officers to stop questioning on any other subject and clarify with the suspect



                                               28
whether or not he intends to invoke his constitutional right.”              Moore v. State,

2017-KA-00379-SCT, 2019 WL 4316161, at *5 (¶31) (Miss. May 30, 2019) (internal

quotation marks omitted). “In Mississippi, if a [suspect] makes equivocal or ambiguous

utterances which could be interpreted as an invocation, then the trend is to require cessation

of interrogation except for strictly-limited inquiry for clarification purposes.” Id. (internal

quotation mark omitted).

¶65.   Even if the police did not understand what “I don’t want to talk about it no more”

meant, which they fully understood by their obvious attack on the invocation of silence, they

failed to follow best practices in stopping and asking if Taylor meant to invoke his right to

silence. Of course they did not do that because the invocation of Miranda was not confused

or ambiguous at all; the police knew the suspect had invoked his right to silence but kept

questioning him anyway, spanning nearly six minutes of time.

¶66.   This practice is why we cannot then double down on the fiction that this “accidental”

violation of constitutional rights could be harmless. Any constitutional violation as

conspicuous as the one that occurred when the officers chose to ignore Taylor’s clear

invocation of his right to silence and continued to question him can hardly be characterized

as harmless. Our constitutional rights, so concretely manifested in Miranda, including our

right to silence, must not be so easily swept aside. We must not grant full permission to

ignore Miranda and the Constitution; for it is not our right to grant this permission to the

police because it was prohibited in 1966 in a decision that clarified the very bedrock of our

joining together as a constitutional republic.



                                              29
¶67.   In truth Miranda is just an access point to the heroic rights invested to the people by

our Constitution. We must not construct barriers to prevent access to our core constitutional

rights. By finding harmless error, the majority pulls people farther away from the rights they

have in our society.

¶68.   This practice is also why we should not pretend there is some set of precise magic

words to invoke the rights under the Constitution. If there is an ambiguous invocation of a

request for an attorney or to remain silent, the police must stop and clarify. The rights to an

attorney and silence are there for all of us, and we cannot sanction sweeping them aside.

¶69.   If the evidence of guilt against the defendant is ample as the majority says, then

reverse and remand, and let him have a trial free of the stain of constitutional violations. In

straining to find no error, and in trying so hard to pretend what happened was okay, we

magnify the violation.

¶70.   The majority does reach the correct conclusion that a second-degree murder

instruction was properly denied. Yet we should not allow a violation of the right to silence,

because that right is intimately tied “to the respect a government—state or federal—must

accord to the dignity and integrity of its citizens.” Miranda, 384 U.S. at 460. Because I

believe we must not erode the dignity and integrity of Mississippians, I will not join the

majority in full.

       WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.




                                              30
