        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-01698-COA

MICAH BOSTIC A/K/A DROP                                                    APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                          10/10/2017
TRIAL JUDGE:                               HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED:                 ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: ERIN ELIZABETH BRIGGS
ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                           BY: BARBARA WAKELAND BYRD
                                                JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                         J. TRENT KELLY
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 06/18/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

       McDONALD, J., FOR THE COURT:

¶1.    Micah Bostic was convicted of capital murder in the Alcorn County Circuit Court and

sentenced to a term of life imprisonment without eligibility for parole. Subsequently, Bostic

filed a motion for a judgment of acquittal notwithstanding the verdict (“JNOV”) and

alternatively requested a new trial. The motion was denied. Bostic now appeals the issue

of whether the circuit court erred in failing to suppress his statements made to the officers

on February 3, 2016, which were obtained after he requested an attorney. Although we agree

that the motion to suppress should have been granted because the officers violated his rights
against self-incrimination and his right to counsel, as guaranteed by the Fifth and Fourteenth

Amendments,1 we find that the court’s decision resulted in harmless error and affirm the

conviction.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On February 1, 2016, two men attempted to rob the Mapco service station in Corinth,

Mississippi. When the clerk reached for the panic alarm one suspect shot her multiple times.

Corinth Police responded to the Mapco service station’s panic alarm at 5:39 a.m. The clerk

later died from those wounds. When the detectives viewed the surveillance video, Brooklyn

Traylor, the co-defendant, was identified as the shooter. The second suspect could not be

identified from the Mapco surveillance video.

¶3.    When Traylor’s parents learned that he was a suspect, they took him to the police

station. Traylor denied his involvement in his first interview. On February 2, 2016,

Traylor’s parents watched the surveillance video and met with him privately. Then, Traylor

gave another statement in which he admitted to committing the crime and stated Bostic, the

appellant, also known as “Drop,” was with him.

¶4.    On or about February 3, 2016, Bostic was arrested. During Bostic’s interrogation, he

clearly invoked his right to counsel when he stated, “I am taking my mother’s advice, I want

an attorney,” but the officers continued questioning him. Bostic requested an attorney

several times throughout the interrogation, yet the interrogation lasted nearly fifty-two

       1
        The federal laws regarding the right against self-incrimination and the right to
counsel during custodial interrogation generally apply to the States by incorporation through
the due process clause of the Fourteenth Amendment to the federal Constitution.
Chamberlin v. State, 989 So. 2d 320, 332 (¶35) (Miss. 2008).

                                              2
minutes.

¶5.    A grand jury indicted Bostic and Traylor for capital murder with the underlying felony

being armed robbery. Bostic filed a motion to sever the cases, which the trial court granted.

¶6.    On January 19, 2017, Bostic filed a motion to suppress his statements made on or

about February 3, 2016. Bostic argued that despite his multiple requests for an attorney, the

investigators continued to interrogate him violating his constitutional right to an attorney.

¶7.    On February 7, 2017, the State filed its response to Bostic’s motion to suppress. The

State argued Bostic’s request for an attorney was vague. The State contends the investigators

immediately ceased the interrogation and did not ask any further questions regarding the

charge at issue. The State also contends the few words spoken by the investigator were not

likely to elicit an incriminating response.

¶8.    After a hearing on the issue the circuit court denied Bostic’s motion to suppress his

statements made on February 3, 2016. The court found that the statements made by Bostic

to the detectives “were voluntarily, knowingly and intelligently made after being informed

of his Miranda rights which he knowingly and voluntarily waived.”2

¶9.    On October 3, 2017, a trial on the merits began. During the trial the State called

fifteen witnesses. Some of the witnesses testified to the logistics of the crime itself but the

following witnesses’ testimony pertained to Bostic’s involvement.

¶10.   Captain Benjamin Gann testified that he found a loose distinctive patterned blue

hoodie in a dumpster near the laundromat 75–100 yards away from the scene of the incident.



       2
           See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

                                              3
Gann also testified that all of the garbage in the dumpster was bagged except for the

distinctive patterned blue hoodie which fit the description of what the second suspect wore.

¶11.   During officer Jerry Rogers’s testimony the State offered Bostic’s videotaped

interview into evidence. The videotaped interview included details pertaining to Bostic’s

prior conviction for armed robbery, his whereabouts and alibi for the night before and

morning of the incident, his affiliations with Traylor, and his prior gang affiliations with

“gangster disciples.” Bostic never admitted to being at the scene where the victim in this

case was murdered.

¶12.   Ashanti Alexander, who claimed to be Bostic’s girlfriend during the time of the

incident, testified that Bostic was known as “Drop.” Ashanti could not testify about Bostic’s

whereabouts on the night before the incident or during the time the incident occurred

(sometime before 5:39 a.m.). She could only testify that Bostic arrived at Elease Lavey

Trice’s apartment sometime before daylight on the morning the murder occurred. Once

Bostic arrived, she heard him tell Dezzon Thomas that Traylor shot someone seven times.3

Ashanti stated that Bostic was wearing the distinctively patterned blue hoodie the day before

the incident. But he was not wearing a hoodie when she saw him after the occurrence of the

murder.4

¶13.   Lavey, the owner of the apartment where Bostic, Traylor, and Dezzon were at some



       3
           She stated that Bostic told her that he was not involved with the shooting.
       4
         Bostic’s attorney impeached Ashanti because in her video interview a few days after
the incident she stated she did not know the last time she saw Bostic wearing the distinctive
blue hoodie.

                                               4
point before or after the incident, testified that Bostic was also known as “Drop.” Lavey

could not testify as to Bostic’s whereabouts prior to the incident’s occurrence. She testified

that about 7 a.m. she woke up to Traylor beating on her back door and asking to speak to

Bostic. Lavey further testified that Bostic was not at her home when she went to bed;

therefore, someone must have let Bostic in while she was asleep.

¶14.   Dezzon testified that he had heard people call Bostic “Drop.” He contends he woke

up to Bostic knocking on the front door of Lavey’s apartment. He testified that Bostic told

him that Traylor had just killed a woman at the store. Dezzon’s testimony contradicted with

Ashanti’s testimony with respect to whether Bostic was at Lavey’s house on the night before

the murder. Dezzon’s testimony also contradicted with Lavey’s testimony regarding what

time Lavey put him and Traylor out of her house.5

¶15.   Kathryn Rodgers, the forensic DNA analyst, testified that she received the

distinctively patterned blue hoodie and buccal swabs from Bostic in order for her to test

whether Bostic’s DNA was on the hoodie. She later received buccal swabs from Dezzon

because Traylor implicated someone named “Wop” and Dezzon goes by that name of

“Dewop.” The results revealed an exclusion and likelihood ratio. In other words, the results

express whether a person is excluded or cannot be excluded to the DNA mixture on the

distinctive blue hoodie. Rodgers testified that 99.99 percent of all the people in the world

were excluded as possible donors of the DNA profile. That left only .01 percent of the world

       5
        Dezzon and Lavey’s testimony contradicted as to the time that she got off work and
the time she asked him and Traylor to leave. Dezzon testified that Lavey put them out
around 10:30 to 11:00 p.m. He testified that Lavey incorrectly testified that she asked him
and Traylor to leave between 3:30 and 4 a.m.

                                              5
population’s DNA profile that could possibly be contained in that swab. Bostic could not be

excluded as a contributor of the DNA profile. However, Dezzon was excluded from being

a contributor.

¶16.   Traylor testified that he never said Bostic was with him when he went into Mapco.

Traylor stated that the officers wanted him to say Bostic was with him, but he contends that

he only said “Drop” and that “Drop” and “Wop” are common names.6 He stated that when

he entered his plea he signed the statement on June 30 indicating that Bostic was with him

at the time of the incident, but he did not look over the statement. As a result, Traylor did

not agree with the statement he signed on June 30. Traylor testified that he did not know

Bostic and never stated the name “Bostic” during any statement he made. To impeach

Traylor, the State showed the video of his second interview in which Traylor confessed to

the shooting. But during the interview Traylor stated that “Drop” was with him and that

“Drop’s” “government name” is “Micah Bostic.” After watching the video of his interview,

Traylor stated that he was under the influence and had just talked with his family, who told

him those things about Bostic. Later, the State introduced the Mapco surveillance video.

Traylor was heard using the name “Drop” in the Mapco surveillance video. In addition, the

State attempted to elicit testimony regarding Traylor and Bostic’s gang affiliation with the



       6
         Traylor referenced “Wop” during his testimony because during his third interview
with the officers he attempted to retract his statement implicating Bostic. Traylor stated that
the guy that was with him he went by the street name of “Wop.” Traylor asserted he did not
know the “Micah Bostic” that the officers arrested. Traylor gave the officers an address
where “Wop” could be found. When the officer went to that address the owner stated that
he did not know a “Micah Bostic” or “Wop.” The owner stated that he knew Dezzon
Thomas but his street name was “Dewop” as opposed to “Wop.”

                                              6
black gangster disciples. Traylor did not confirm these facts.7

¶17.   To impeach Traylor, the State called Steven Wilburn, the jailhouse administrator, and

offered letters (purporting to be from Traylor to Bostic) to prove that Traylor knew Bostic

and that they were fellow gangsters affiliated with black gangster disciples.

¶18.   Bostic testified (against the advice of his counsel) that on Sunday, January 31, 2016,

he was at Lavey’s apartment at approximately 7 or 8 p.m. Bostic testified that when he left,

he went to Tunica with Alex Bostic (his little brother), Dominique Meriwether (his

girlfriend), and Brian Rutherford (his cousin) around 8 p.m. Bostic testified that they made

it back to Corinth at approximately 2 a.m. and that he went to Brian’s house to go to sleep.

He testified that Alex dropped him off at Lavey’s at 6 a.m. Bostic also testified that the last

time he wore that blue hoodie was the Friday before the incident and that he left it in a pile

at Lavey’s apartment.

¶19.   At trial, Bostic insisted on calling his brother, Alex, as a witness against his attorney’s

advice (again). Alex testified that on Sunday, January 31, 2016, when he, Bostic, Brian, and

Dominique went to Tunica, they left Corinth at approximately 8 p.m. Alex stated that they

arrived back in Corinth at approximately 1 a.m. on Monday, February 1, 2016, and went to

Country Lane Apartments. Alex contends he took Bostic to Lavey’s apartment at

approximately 7 a.m.8

¶20.   Following the week-long trial, the jury found Bostic guilty of capital murder on


       7
        The State was trying to make a connection between Bostic and Traylor based on
Bostic’s statement that he was a former member of that gang.
       8
           Upon cross-examination, Alex testified that Meriwether drove to Lavey’s apartment.

                                               7
October 10, 2017, and he was sentenced to serve a term of life imprisonment without parole

pursuant to Mississippi Code Annotated section 97-3-21(3) (Rev. 2014).

¶21.     Aggrieved, on October 18, 2017, Bostic filed a motion for a judgment notwithstanding

the verdict and alternatively requested a new trial. The circuit court denied Bostic’s requests

on December 1, 2017. Despite having multiple issues in his motion, only the issue of the

court’s denial of his motion to suppress was raised on appeal.

¶22.     Bostic timely noticed this appeal. Bostic alleges that the trial court erred by failing

to suppress his statements given to the police investigators because he repeatedly invoked his

constitutional right to counsel, and he says that the officers nonetheless failed to end the

interrogation. Bostic also argues that his statements should be suppressed because the

interrogation video shown during trial included a jailor questioning him about his gang

affiliations.

                                 STANDARD OF REVIEW

¶23.     This Court will reverse a trial court’s denial of a motion to suppress if the court’s

ruling was a manifest error or contrary to the overwhelming weight of the evidence. Downey

v. State, 144 So. 3d 146, 150 (¶6) (Miss. 2014). “The standard of review for the suppression

of evidence is abuse of discretion.” Chamberlin v. State, 989 So. 2d 320, 336 (¶52) (Miss.

2008).

                                        DISCUSSION

         I.     Motion to suppress

¶24.     The Fifth and Fourteenth Amendment prohibition against self-incrimination requires



                                                8
that anyone subject to custodial interrogation be advised that they have the right to remain

silent and the right to the presence of an attorney. Balfour v. State, 598 So. 2d 731, 744

(Miss. 1992) (citing Miranda v. Arizona, 384 U.S. 436, 479 (1966)). If the subject invokes

the right to remain silent, then the questioning must stop; and if the subject requests counsel,

the questioning must cease until an attorney is present. Balfour, 598 So. 2d at 744.

       II.    Invocation of the right to an attorney

¶25.   An individual must specifically invoke the right to counsel. Edwards v. Arizona, 451

U.S. 477, 482 (1981). The invocation does not have to be accomplished in a specific manner

or at a specific stage in the process. Holland v. State, 587 So. 2d 848, 856 (Miss. 1991).

Regardless of whether the defendant’s request for an attorney is explicit or equivocal, the

court must give a broad, rather than narrow, interpretation to a defendant’s request for

counsel. Id. at 856. In situations where the officer believes the accused made an equivocal

statement suggesting a request for counsel, the interrogation may only continue on the narrow

road to ascertain the meaning of the equivocal statement. Id.

¶26.   In the present case the officer read Bostic his Miranda rights, and the following

exchange occurred:

       BY DETECTIVE ROGERS:

       Q:     Do you wish to talk to me about why you’re here at this time?

       A:     Actually, I want to take my mother’s advice cause she told me – I told
              her I’m innocent, so it ain’t like me going in there and tell they ass what
              I want to. You know, but she told me to request for an attorney and you
              know I want to–

       Q:     Well I mean –


                                               9
       A:     I really want to, you know –

       Q:     You’re a grown man, so, you know, it’s up to you. It’s your decision to
              make.

       A:     Yeah. I really want – I want to take my mother’s advice, though, so–

       Q:     So you’re saying you want an attorney?

       A:     Yes, sir.

       Q:     (Detective Green) Micah I want you to understand you know
              everyone–[9]

       A:     Actually, you know I had – I’m just now being released from prison
              like November 4th from doing eight mandatory years. Actually, that’s
              what I had did at first. I had committed a crime with a guy from
              Tennessee and we robbed a cab driver. Okay. Well, I say we now
              cause I got incriminated for the shit and did the time for it. . . .[10]

¶27.   It is not required that a defendant use specific language, such as “I want a lawyer,” to

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

Downey v. State, 144 So. 2d 146 (Miss. 2014) (finding Downy invoked her right to counsel

by stating that she had an attorney and “could use him.”); Holland v. State, 587 So. 2d 848,

856-57 (Miss. 1991) (holding that a suspect invoked his right to counsel when asking

detectives “Don’t you think I need a lawyer?”). Only “some kind of positive statement or

other action that informs a reasonable person of the defendant’s desire to deal with the police

only through counsel” is required to assert the right. Wilcher v. State, 697 So. 2d 1087, 1096



       9
        Later, Detective Green finishes his sentence and says, “Well, that’s what I want you
to understand, Micah. You’ve been through this before.”
       10
          We use the language and style from the record presented to us and do not insert
alterations regarding punctuation.

                                              10
(Miss. 1997) (quoting Michigan v. Jackson, 475 U.S. 625 (1986)).

¶28.   When Bostic stated that he wanted to take his mother’s advice he invoked his right

to counsel. The officers were required to cease the interrogation. The circuit court found

that there was no police-initiated questioning after he invoked his right to counsel. When the

circuit court denied Bostic’s motion to suppress, it ruled that “[Bostic] stated he wanted an

attorney, but in almost the same breath, without any questioning or prompting or prodding

by the detectives, defendant starts voluntarily, freely and voluntarily [sic], relating to the

detectives a story about his prior armed robbery of a cab driver and his sentence in that case.”

The circuit court also said, “in short, there was no interrogation by the police.” We disagree.

¶29.   This Court has held that an interrogation can exist even though an officer does not

explicitly question one about the contents of the file or facts of the case. The “term

interrogation has not been limited to encompass only express questioning by the police. In

fact, the Mississippi Supreme Court has applied a broad interpretation to the term

interrogation to include not only questioning, but rather questioning and its functional

equivalent.” Pannell v. State, 7 So. 3d 277, 282 (¶12) (Miss. Ct. App. 2008) (internal

quotation marks omitted). The United States Supreme Court has defined “functional

equivalent” to mean “words or actions . . . that the police should know are reasonably likely

to elicit an incriminating response from the suspect.” Id. at 282-83 (¶12) (citing Rhode

Island v. Innis, 446 U.S. 291 (1980). “The determination of whether the police should have

known a particular practice was reasonably likely to elicit an incriminating response focuses

on the perceptions of the suspect, not the intent of the police.” Benjamin v. State, 116 So.



                                              11
3d 115, 122 (¶14) (Miss. 2013).

¶30.   Here, the officers continued to question Bostic in a direct effort to get him to retract

his invocation of his right to an attorney. The officers refused to accept Bostic’s response

that he wanted an attorney. Saying, “[Y]ou’re a grown man, so it’s up to you. It’s your

decision to make. . . ,” was the functional equivalent of interrogation because the officer

should have known that that was reasonably likely to elicit an incriminating response.

Although the officer asked Bostic if he wanted and attorney and he responded “yes sir[,]” the

interrogation still did not cease. Detective Green continued to try to get Bostic to talk when

he stated, “Micah I want you to understand you know everyone.” The officers made no

indication that they honored Bostic’s request. The camera did not stop running. Neither

officer attempted to get up and escort Bostic out. The interrogation did not cease. “Once an

accused has invoked his right to counsel, any statements given by the defendant in response

to further police questioning are admissible only where (1) the defendant initiated further

discussions with the police and (2) knowingly and intelligently waived the rights he had

invoked.” Pannell, 7 So. 3d at 287 (¶29) (citing Smith v. Illinois, 469 U.S. 91, 95 (1984)).

Once the right to an attorney has attached, “any statements obtained from the accused during

subsequent police-initiated custodial questioning regarding the charge at issue (even if the

accused purports to waive his rights) are inadmissible.” Showers v. State, 70 So. 3d 241, 247

(¶24) (Miss. Ct. App. 2011). Bostic neither initiated conversation with the officers nor did

he waive his right to an attorney. This was a police-initiated questioning. Thus, we find that

Bostic’s statements were the product of further interrogation by the officers and should have



                                             12
been suppressed because although he invoked his right to counsel the interrogation did not

cease.

         III.   Harmless error

¶31.     The State argues that if this Court finds that Bostic’s Fifth Amendment right to

counsel was violated, it was harmless beyond a reasonable doubt. We agree.

         [T]he admission of statements taken in violation of an accused’s Fifth
         Amendment rights is “amenable to harmless error analysis.” “In order for a
         violation of a constitutional right to be held harmless, this Court must
         determine that the violation was harmless beyond a reasonable doubt.” We
         have held that “errors involving a violation of an accused’s constitutional
         rights may be deemed harmless beyond a reasonable doubt where the weight
         of the evidence against the accused is overwhelming.”

Hutto v. State, 227 So. 3d 963, 980 (¶49) (Miss. 2017) (internal quotation marks and citations

omitted).

¶32.     We find that the admission of the video constituted harmless error beyond a

reasonable doubt because Bostic’s statements given to police were exculpatory and

cumulative rather than inculpatory. During the interrogation, Bostic continuously pleaded

and maintained his innocence. Bostic never confessed to any crime. During trial, Bostic

testified to the same alibi as he did during his interrogation.

¶33.     There was overwhelming evidence against Bostic without his statements. The

surveillance video of the incident was played for the jury and the accomplice was referred

to as “Drop.” The State also introduced a video of Traylor’s second interview which Traylor

confessed that “Micah Bostic also known as Drop” was with him at the time of the murder.

Although Traylor attempted to retract his confession implicating Bostic, letters purported to



                                              13
be from Traylor to Bostic were entered into evidence. These letters revealed that Traylor

planned to testify in Bostic’s favor in an effort to “free [ ] Drop” because they could not

“look out [] for each other [if] both [of them were] locked up.” Several witnesses called by

the State testified that Micah Bostic was known as “Drop.” The physical evidence also

supports the jury’s verdict convicting Bostic. The distinctively patterned blue hoodie that the

accomplice was seen wearing in the Mapco surveillance video was recovered from a

dumpster near the scene of the incident. Ashanti testified that Bostic was wearing that

distinctive blue hoodie before the incident occurred but he did not have it on when she saw

him after the incident.11 Rodgers, the forensic DNA analyst, testified that she received the

distinctive blue hoodie and buccal swabs from Bostic. The DNA test she ran revealed the

exclusion and likelihood ratio of potential contributors. The results provided that Bostic

could not be excluded as a contributor of the DNA profile whereas 99.99 percent of all the

people in the world were excluded as possible donors. Therefore, we conclude the evidence

against Bostic was overwhelming rendering the Fifth Amendment violation harmless error.

                                         CONCLUSION

¶34.   The circuit court erred when it denied Bostic’s motion to suppress his statements made

during the February 3, 2016 interview. When Bostic invoked his right to counsel the officers

did not cease the interrogation as required by law. However, we find the violation to be

harmless error based on the overwhelming weight of the evidence against Bostic.

Accordingly, we affirm.



       11
            Bostic testified to the contrary.

                                                14
¶35.   AFFIRMED.

      BARNES, C.J., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE AND
McCARTY, JJ., CONCUR. CARLTON, P.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. J. WILSON, P.J., AND C. WILSON,
J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.




                               15
