author: | VICTORY, J. hCALOGERO, Chief Justice, KNOLL, J.,

text:
    STATE of Louisiana v. Mary L. TOUPS a/k/a Mary Billiot.
    No. 2001-K-1875.
    Supreme Court of Louisiana.
    Oct. 15, 2002.
    Rehearing Denied Jan. 24, 2003.

      Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Juliet L. Clark, Terrytown, Counsel for Applicant.
    Kevin V. Boshea, New Orleans, Counsel for Respondent.
   | VICTORY, J.

We granted this writ to determine whether the court of appeal erred in vacating defendant’s conviction for possession of cocaine, finding that the State failed to prove the element of possession. After reviewing the facts and the applicable law, we reverse the judgment of the court of appeal and reinstate defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

After receiving confidential information that a person named “Stan” was selling drugs from a residence at 633 North Scott Street and conducting a controlled purchase of drugs from that address on the afternoon of October 18, 1999, on that evening, New Orleans Police Department Officer Dennis Bush and five other officers executed a search warrant at that residence. Before executing the warrant, the officers conducted a surveillance of the residence for approximately thirty minutes. After receiving no response at the front door, Bush entered the shotgun residence. He observed defendant Mary Toups and Stanley Williams, the known resident of that address, seated on a sofa in the front living room, facing one another and apparently engaged | ¡jn conversation. Two pieces of crack cocaine, three clear glass crack pipes and a razor blade were found on a coffee table positioned directly in front of defendant and Williams. Defendant was approximately three feet from the drugs on the table, which were directly in front of her. Another 16 rocks of cocaine found at the home were located in a plastic container that was next to Williams. Police also seized $304.00 in cash from the same area. The officers did not see defendant or Williams smoking from the pipes. The officers did not see defendant enter the residence during their 30-minute surveillance, indicating she was in the residence for at least that long, but were unable to find any indication that defendant resided there. Defendant falsely gave her name as “Mary Billiot” at the time of her arrest. While defendant was not charged with any offense with regard to the cocaine in the container, the State filed a bill of information charging defendant with possession of the two pieces of cocaine found on the coffee table.

At trial, in addition to the above testimony, a criminologist with the New Orleans Police Department Crime Laboratory testified that the rocks in the container, the two additional rocks, and the pipes all tested positive for cocaine. None of the items were submitted for fingerprint analysis.

Defendant was found guilty as charged by a jury of six and was sentenced as a multiple offender to serve four years in the department of corrections. On May 23, 2001, her conviction was reversed by the Fourth Circuit Court of Appeal, which found that the evidence introduced at trial was constitutionally insufficient to support the conviction. State v. Toups, 00-1944 (La.App. 4 Cir. 5/23/01), 792 So.2d 18. We granted the State’s writ application. State v. Toups, 01-1875 (La.5/24/02), 815 So.2d 851.

^DISCUSSION

In reviewing the sufficiency of the evidence to support a conviction, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207 (La.1984). La. R.S. 15:438, however, does not establish a stricter standard of review than the more general rational juror’s reasonable doubt formula; it is merely an evidentiary guide for the jury when considering circumstantial evidence. State v. Porretto, 468 So.2d 1142 (La.1985). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). Finally, the fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. State v. Mussall, 523 So.2d 1305 (La.1988). A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319 (La.1992).

Toups was charged with possession of cocaine, a violation of La. R.S. 40:967, which makes it unlawful for any person to knowingly or intentionally possess a controlled dangerous substance. The State need not prove that the defendant was in physical possession of the narcotics found; constructive possession is sufficient to support a conviction. The law on constructive possession is as follows:

A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which |4is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it.... Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug....

State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959 (La.1990).

A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713 F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor: “evidence that the area was frequented by drug users”).

Toups argued to the jury that the only evidence connecting her with the drugs was her mere presence in the area where the drugs were found. However, most, if not all, of the factors used to determine whether a defendant exercised dominion and control sufficient to constitute constructive possession have been met in this case: (1) Toups inevitably had knowledge that drugs were in the area in that they were in plain view directly in front of her; (2) Toups had access to the area where the drugs were found; (3) Toups was in very close physical proximity to the drugs; and (4) the area was frequented by drug users, as the police received confidential information on the |Bmorning of October 18, 1999 that Williams was conducting drug transactions and the police did a controlled purchase of drugs from Williams that afternoon, and another 16 rocks of cocaine were on the sofa next to Williams. While there was no evidence presented of any specific relationship between Toups and Stanley Williams, it is reasonable to conclude that they were not strangers given that she was with Williams for at least 30 minutes prior to their arrest and that Williams would not sit at his coffee table with crack cocaine in plain view ready to be smoked with someone he did know personally or someone who he did not know would be amenable to using the drugs. Further, although there was no evidence presented of recent drug use, the fact that the drugs and paraphernalia were on the table in front of them and that the paraphernalia contained drug residue suggests that they were preparing to use, or had already used, drugs. Finally, it is important to note that the jury was presented with evidence that Toups gave a false name, “Mary Billiot,” to the police upon her arrest, indicating consciousness of guilt. State v. Davies, 350 So.2d 586 (La.1977) (evidence of flight, concealment, and attempt to avoid apprehension indicate consciousness of guilt and is one of the circumstances from which the jury may infer guilt); State v. Wade, 33,121 (La.App. 2 Cir. 5/15/00), 758 So.2d 987 (concealing identity by giving false name relevant because it indicates consciousness of guilt). The jury was presented with all this evidence and determined that Toups exercised dominion and control over the drugs sufficient to constitute constructive possession. We find that this evidence was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.

We disagree with the court of appeal’s view that “[considering the evidence adduced at trial, one can only speculate as to what the defendant was doing in the residence,” suggesting that “[s]he could have been a non-drug using member of a neighborhood church proselytizing defendant.” 792 So.2d at 23. The jury rejected |fithe “innocent” hypothesis that Toups was merely present at the sofa in front of illegal drugs, for the obvious reasons that there was no evidence presented to lead the jury to that conclusion and that any hypothesis other than possessing drugs was unreasonable. We agree.

Further, the cases relied upon by the court of appeal in reversing defendant’s conviction are distinguishable. In State v. Bell, supra, this Court held that a rational fact finder could not have concluded from the mere presence of narcotics in a wrapped package among cassette tapes on the console of a car that the defendant, a passenger in the vehicle, was in possession of the contraband. This Court stated that even assuming the defendant “was aware of the contents” of the package, no rational fact finder could have concluded that he “exercised control and dominion over the package, or that he willfully and knowingly shared with [the co-defendant] the right to control it.” 566 So.2d at 960. However, contrary to the facts in Bell where the drugs were wrapped in a package with no accompanying paraphernalia and therefore not susceptible of immediate use, in this case the drugs and necessary paraphernalia were placed directly in front of Toups ready for use.

This case is also distinguishable from the other case cited by the court of appeal, State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir.1990). In Jackson, in which the court of appeal reversed the jury’s verdict finding the defendant guilty of attempted possession of cocaine, the defendant was found standing in front of a homemade bar in a co-defendant’s residence, on which were displayed a mirror with cocaine residue, two cocaine pipes (one of which was positive for cocaine residue), and one razor blade with .cocaine residue. The court of appeal found that although the defendant was standing next to drug paraphernalia, there was no evidence that the pipe with residue was warm or that the defendant was anything other than a guest in the house. 557 So.2d at 1035. In the instant case, Toups was not only near paraphernalia 17which had been used at some unknown time, she was seated in front of two rocks of cocaine, not mere residue, in plain view and within arms length.

This case is more in line with State v. Harris, 585 So.2d 649 (La.App. 4 Cir.1991), which is similar in every respect except that the defendant in that case was the brother of the person who rented the apartment, whereas Toups’ relationship to Williams is unknown. In Harris, the court of appeal found that where the defendant was sitting at his brother’s kitchen table where cocaine was easily accessible and openly displayed along with drug paraphernalia, and the defendant’s brother was nearby free basing cocaine, the evidence was sufficient to establish that the defendant knowingly possessed the drugs on the kitchen. Although the defendant claimed he was only at his brother’s house to eat a chicken dinner, the jury did not accept this hypothesis of innocence and the court of appeal confirmed the conviction. 585 So.2d at 651.

CONCLUSION

We find that the evidence presented in this case, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved that defendant exercised dominion and control over the cocaine sufficient to constitute constructive possession beyond a reasonable doubt. Most, if not all, of the factors used to help make this determination were present in this case. In addition, defendant gave police a false name upon her arrest. While certainly one could speculate about other reasons for defendant’s presence at the residence, given the facts presented, the jury correctly concluded that any other explanation was unreasonable.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and defendant’s conviction and sentence are reinstated.

REVERSED; CONVICTION AND SENTENCE REINSTATED.

KNOLL, J., dissents for the reasons assigned by the Fourth Circuit Court of Appeal.

hCALOGERO, Chief Justice,

dissents and assigns reasons.

Neither the defendant’s mere presence in an area where drugs are located nor the defendant’s mere association with one possessing drugs necessarily constitutes constructive possession. State v. Brisban, 2000-3437, p. 8 (La.2/26/02), 809 So.2d 923, 929. A corollary to that rule is that the State must present evidence of constructive possession other than mere presence or mere association in order to support a defendant’s conviction. In reversing the defendant’s conviction, the court of appeal cited two eases that correctly demonstrate the application of that rule to defendants found in the presence of drugs in other people’s residences, like the defendant in the instant ease. State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir.1990); State v. Harris, 585 So.2d 649 (La.App. 4th Cir.1991).

In Jackson, the defendant’s conviction for constructive possession was correctly reversed by the court of appeal because the State failed to present any evidence of constructive possession except mere presence or mere association. The Jackson defendant was found standing at a homemade bar displaying drug paraphernalia with traces of cocaine residue inside a residence into which the police followed an individual who had discarded drugs in plain view. Id. at 1034. The court of appeal’s reversal was based on the lack of evidence to show that the residue-containing pipe was warm, that the defendant’s fingerprints were on any of the items, |2that the defendant tested positive for cocaine, or that the defendant was anything more than a guest at the residence. Id. at 1035.

Conversely, in Harris, the defendant’s conviction for constructive possession was correctly affirmed by the court of appeal because the State presented sufficient evidence of constructive possession, not just evidence of mere presence or mere association. In that case, police executing a search warrant of the defendant’s brother’s house discovered the defendant seated at the kitchen table with another individual, while his brother was free-basing cocaine at the kitchen sink. 585 So.2d at 651. On the kitchen table in front of the defendant were a plastic bag containing cocaine, 54 marijuana cigarettes, drug paraphernalia, cash, and two plates, one of which tested positive for cocaine. Id. at 650. The court correctly found that evidence was sufficient to support defendant’s conviction for constructive possession. Id. at 651.

In the instant case, police officers executing a search warrant discovered the defendant seated beside the resident of the address on a sofa three feet in front of a coffee table bearing drug paraphernalia with traces of cocaine and two rocks of crack cocaine. She was not sitting at a table — round, square, or otherwise — -with drugs directly in front of her. She was charged with constructive possession of the two rocks of crack cocaine on the coffee table.

The majority distinguishes this case from Jackson by noting that actual drugs were present in plain sight within defendant’s reach in this case, while only drug paraphernalia was present in the Jackson case. However, the drug paraphernalia in Jackson contained cocaine residue, which this court has found sufficient to support drug possession convictions. See, e.g., State v. Hill, 97-2551 (La.11/6/98), 725 So.2d 1282; State v. Randleston, 96-1646 (La.10/4/96), 681 So.2d 936. Moreover, the _J_fact that the drugs were located within defendant’s reach is insufficient, by itself, to support a defendant’s conviction for constructive possession. See, e.g., State v. Bell, 566 So.2d 959 (La.1990).

Similar to Jackson, the State in the instant case presented no evidence to show that the crack pipes were warm, that defendant’s fingerprints were found on any of the drug paraphernalia, that defendant had ingested any cocaine, that defendant intended to ingest cocaine, or that defendant was anything more than a guest in the residence. At the same time, in contrast to Harris case, the State presented no evidence in the instant case that anyone was ingesting drugs in the residence when the police arrived, or that anyone had ingested drugs in the residence while defendant was present. In fact, the State presented no evidence of constructive possession except mere presence or mere association.

Accordingly, I respectfully dissent from the majority decision reversing the judgment of the court of appeal and reinstating defendant’s conviction and sentence. I would affirm the judgment reversing the conviction.

KNOLL, J.,

Dissenting.

Justice Knoll dissents for the reasons assigned by the Fourth Circuit Court of Appeal.

      . In another room, police found an elderly male connected to a respirator.

      . Co-defendant Stanley Williams pled guilty as charged on February 17, 2000.


source: Caselaw Access Project

author: JjPER CURIAM.

license: Public Domain

text:
    In re Gordon L. HACKMAN.
    No. 2002-B-1692.
    Supreme Court of Louisiana.
    Dec. 4, 2002.
    Rehearing Denied Jan. 24, 2003.

      Charles B. Plattsmier, G. Fred Ours, Baton Rouge, Counsel for Applicant.
    Richard C. Stanley, William M. Ross, New Orleans, Gordon L. Hackman, Boutte, Counsel for Respondent.
   JjPER CURIAM.

This disciplinary proceeding arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gordon L. Hackman, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Between November 1, 1997, and June 30, 1998, respondent commingled and converted $113,272.27 in client and third-party funds from his client trust account. According to respondent’s financial records, on June 30, 1998, he had a balance in his client trust account of $50,621.23. However, the account should have had $163,893.50 on deposit stemming from four client settlements held in escrow pending resolution of outstanding medical liens. Without his clients’ knowledge and consent, respondent had withdrawn the funds through a series of periodic withdrawals to satisfy his personal financial obligations.

Respondent’s office manager confronted respondent when she discovered his mishandling of the client trust account. He immediately terminated her employment. Several weeks later, she filed a complaint with the ODC advising of respondent’s misconduct. During the course of the ODC’s investigation, respondent took out a bank loan and replenished the trust account, as well as provided restitution to two third-party medical providers.

| .DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent alleging violations of Rules 1.3 (lack of diligence), 1.4 (failure to communicate), 1.15 (commingling and conversion of client and third-party funds), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) of the Rules of Professional Conduct.

Respondent filed an answer admitting that he improperly “transferred” $112,953 from his trust account during the period in question. However, in his defense, he alleged he earned $54,000 of the amount in legal fees from two of the client settlements and would have eventually been entitled to this amount after the resolution of his clients’ medical liens. As a result, he argued his misconduct essentially constituted a short-term conversion of the remaining funds, which amounted to $58,953.

Formal Hearing

At the formal hearing, respondent testified that he was aware his conversion of funds was improper, but asserted he had no intention to permanently deprive his clients of their funds. In mitigation, respondent noted there was no delay in disbursing settlement payments to his clients. Further, he pointed out that, in the same year he started to engage in the conversion of client funds, his father was diagnosed with prostate cancer. Respondent alleged this prompted him to personally ^undergo prostate specific antigen testing, which indicated an elevated level of antigens (a contributing factor to cancer). Respondent claimed the findings caused him to excessively dwell upon his own mortality-

Respondent presented the testimony of Dr. Barbara Elizabeth McDermott, a board-certified psychiatrist. Dr. McDer-mott testified her structural assessment of respondent indicated he did not adjust to stressful situations very well, a condition which could make him have lapses in judgment, but would not have caused him to deceive others or lie. Dr. Luán Oprea, respondent’s mental health consultant, testified she first saw respondent in July 1998, immediately following the disclosure of his ethical and professional problems. She stated respondent attended a rehabilitation program, and his mental health would improve through self-monitoring.

Finally, respondent presented the testimony of Harvey Lewis, an attorney who handled several cases with respondent. Mr. Lewis testified that during the time of respondent’s misconduct, he noticed a marked change for the worse in respondent’s demeanor or personality and conjectured respondent may have suffered from psychological problems which may have impaired his ability to function. However, Mr. Lewis stated he did not have any reservations about respondent’s morals, ethics, or legal skills relative to respondent’s continued practice of law.

Recommendation of the Hearing Committee

The committee concluded respondent violated Rules 1.15 (commingling and conversion of client and third-party funds) and 8.4(a) (violating or attempting to violate the Rules of Professional Conduct) by invading his trust account at a time when he did not have a right to do so. Further, relying on respondent’s own admission that his conduct was dishonest, the committee determined respondent violated Rule 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation). As such, the committee found no violations of Rules 1.3 (lack of ^diligence), 1.4 (failure to communicate) and 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer).

Relying on Standards 4.11 and 4.12 of the ABA’s Standards for Imposing Lawyer Sanctions, the committee found the baseline sanction for respondent’s misconduct ranged from disbarment to suspension. It recognized dishonest motive and the substantial experience in the practice of law (admitted 30 years at the time of the misconduct) as aggravating factors. As mitigating factors, the committee identified respondent’s personal or emotional problems, timely good faith effort to rectify the consequences of his misconduct, cooperative attitude toward the proceedings, good character or reputation, mental disability, remorse and remoteness of prior offenses.

Based on these findings, the committee recommended that respondent be suspended from the practice of law for a period of eighteen months, with six months deferred, followed by a three-year period of supervised probation. It further proposed respondent be required to post a $100,000 fidelity bond.

Disciplinary Board Recommendation

The disciplinary board concurred in the findings of the hearing committee relative to the professional violations. It noted respondent’s conduct was both knowing and grossly negligent. Although it concluded the potential for harm to respondent’s clients was great, it also pointed out that no client had suffered any | .¡actual harm. The board adopted the ABA Standards and mitigating factors cited by the committee, but found no aggravating factors to be present.

Relying on jurisprudence from this court, the board recommended respondent be suspended from the practice of law for a period of eighteen months, with all but one year and one day deferred, followed by supervised probation for three years and post a $100,000 fidelity bond in favor of his clients for three years.

Both the ODC and respondent filed an objection to the board’s findings and recommendation. Accordingly, the matter was set on the court’s docket for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316, p. 8 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Association v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401, p. 4 (La.11/25/96), 683 So.2d 714, 717; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Respondent does not dispute that he converted client funds to his own use. Therefore, we find this charge is proven by clear and convincing evidence. Accordingly, we now turn to a discussion of the appropriate sanction.

fi The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892, p. 4 (La.10/27/00), 772 So.2d 87, 89; In re: Lain, 00-0148, p. 7 (La.5/26/00), 760 So.2d 1152, 1156; Louisiana State Bar Association v. Levy, 400 So.2d 1355, 1358 (La.1981). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472, p. 2 (La.9/15/95), 660 So.2d 839, 840; Louisiana State Bar Association v. Whittington, 459 So.2d 520, 524 (La.1984).

In the landmark case of Louisiana State Bar Association v. Hinrichs, 486 So.2d 116 (La.1986), we undertook an extensive review of the jurisprudence in conversion cases and set forth some guidelines for imposing sanctions in such cases. In particular, we drew a distinction between those conversion cases which warrant disbarment and those warranting a three year suspension. We explained:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his |7client the funds due without the necessity of extensive disciplinary or legal proceedings.

Hinrichs, 486 So.2d at 122-123. (Citations omitted.)

Applying those guidelines to the instant case, we find the facts of this case involve most of the factors contained in the range of a three-year suspension. Respondent acted improperly in his treatment of his clients’ funds, but no other fraudulent acts were committed in connection with the conversion. Respondent benefitted from the infraction because he used the funds in his trust account to pay his office expenses. There was some harm to respondent’s clients as well as the third party medical providers, as they were deprived of their funds for a period of time. However, the harm was not great, and respondent ultimately made full restitution.

As aggravating factors, we recognize respondent’s dishonest or selfish motive, his substantial experience in the practice of law and his prior disciplinary record. As mitigating factors, we note respondent’s personal and emotional problems, his payment of restitution, and his good character or reputation. The aggravating and mitigating factors in this case are largely in equipoise and do not justify substantial deviation from the baseline suspension of three years.

We will suspend respondent from the practice of law for a period of thirty months.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Gordon L. Hackman be suspended from the practice of law in Louisiana for a period of thirty months. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest |«to commence thirty days from the date of the finality of this court’s judgment until paid.

      . Although no formal charges were brought regarding this incident, Respondent admitted that he paid the office manager $4,000 after she threatened to turn him in.

      . Specifically, respondent alleged he earned a total of $54,000 in legal fees in the client matters of Beverly Breaux and Mack Rensber-ger. As to the Breaux matter, $30,000 in legal fees were not due to respondent until April 1999, approximately sixteen months af-fer his conversion of Ms. Breaux's funds began. Regarding the Rensberger matter, $24,000 in legal fees would not be due to respondent until November 1999, almost two years following the conversion of Mr. Rens-berger's funds.

      . Standard 4.11 provides disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. Standard 4.12 provides suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.

      . Respondent's prior disciplinary record consists of three private reprimands: File No. 5457, 11/29/78, private reprimand stemming from a conflict of interest in a legal representation; File No. 5080-A, 9/14/79, formal private reprimand involving a real estate transaction that lacked clear title; and File No. 8567, 4/13/87, formal private reprimand involved a failure to return an unearned fee. Respondent admitted other complaints had been filed against him.

      . The hearing committee found no support for the charges alleging failure to communicate, lack of diligence or commission of a criminal act. We see no error in this finding.

      . However, like the committee, we acknowledge respondent's offenses are fairly remote in time.


author:
hWEIMER, J. | VICTORY, J.,
      hTRAYLOR, J.,

text:
    Bobbie M. ROLLINS, et al. v. Johnny M. RICHARDSON, Jr., et al.
    No. 2002-C-0556.
    Supreme Court of Louisiana.
    Dec. 4, 2002.
    Rehearing Denied Jan. 24, 2003.

      Patricia N. Miramon, Shreveport, Counsel for Applicant.
    Dale G. Cox, Mary Louis Coon Blackley, Shreveport, Thomas A. Bordelon, Natchi-toches, Counsel for Respondent.
   hWEIMER, J.

We granted certiorari in this case to consider whether the lower courts erred in granting summary judgment in favor of Allstate Insurance Company (“Allstate”) dismissing all claims against it upon the finding that a compromise between the plaintiff and Allstate’s insured extinguished the insured’s delictual obligation and thereby terminated coverage under Allstate’s policy. For the reasons assigned, we conclude that summary judgment should not have been granted in this case. Accordingly, we reverse the judgment of the court of appeal in its entirety. Likewise, we reverse the district court’s grant of summary judgment in favor of Allstate and remand the case to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Bobbie Rollins, the adoptive mother of Tajessica Lucky, filed suit against her neighbors, Annie and Johnnie Richardson, after Tajessica developed mediastinal fibrosis, a severe and debilitating medical condition secondary to and/or resulting from histoplasmosis infection. The petition alleges that the Richardsons continuously kept chickens on their residential property, and, in addition, stored grocery store and | ¿restaurant waste on the property. According to the petition, the unsanitary conditions on the Richardson’s property caused Tajessica’s illness.

The Richardsons answered the petition, denying liability, and brought a third party demand against their insurer, Allstate. The third party demand alleges that Allstate issued a homeowner’s insurance policy to the Richardsons, and that the Rich-ardsons are entitled to full indemnification under the policy in the event that an adverse judgment is rendered against them.

Allstate answered the Richardsons’ third party demand and denied coverage under a policy exclusion regarding bodily injury resulting from the discharge, dispersal, release, or escape of vapors, fumes, acids, toxic chemicals, toxic gases, toxic liquids and solids, waste material or other irritants, contaminants or pollutants (the “pollution exclusion” of the policy). Although Allstate denied coverage under its policy, it did provide the Richardsons with a defense. It was the defense counsel provided by Allstate who filed the answer and third party demand on behalf of the Rich-ardsons.

The case was set for trial on March 23, 2000. Less than two weeks prior to the scheduled commencement of trial, the plaintiff entered into a settlement agreement with the Richardsons. On March 10, 2000, the parties executed an “Assignment of Rights and Subrogation Agreement” wherein, in consideration for being dismissed from the lawsuit, the Richardsons “assign[ed], transferred], and subro-gate[d] unto plaintiffs, Bobbie M. Rollins, individually and on behalf of the minor child Tajessica Nicole Lucky, any claims or rights against Allstate Insurance Company pursuant to any policy issued to us or for our benefit.” In addition, the Richardsons transferred to the plaintiff any rights they had pursuant to the third party demand filed against pMlstate. The settlement was negotiated by counsel for the Richard-sons with the knowledge and consent of the Allstate claims representative assigned to the Richardsons’ file. During the course of settlement negotiations, that claims representative was asked if Allstate would object to the amendment of plaintiffs petition to name Allstate as a direct defendant in the lawsuit. The Místate claims representative responded that Allstate would not object to the late amendment. Thereafter, counsel representing Allstate on the third party demand and the separate claims representative assigned by Allstate to that third party demand were informed that a settlement had been reached between the plaintiff and the Richardsons and that Allstate had agreed not to object to the amendment of plaintiffs petition to add Allstate as a direct defendant.

On March 15, 2000, plaintiff filed a second supplemental and amending petition naming Místate as a defendant in the main demand. Pursuant to its previous agreement, Allstate did not object to its addition as a defendant. Thereafter, on March 20, 2000, plaintiff and the Richardsons filed a partial motion to dismiss, “dismissing with prejudice all claims against Johnny M. Richardson, Jr. and Annie M. Richardson,” and expressly reserving “any and all rights against remaining defendants including ALLSTATE INSURANCE COMPANY as insurer of Johnny M. Richardson, Jr. and Annie M. Richardson and as third party defendants.”

Trial was continued. Thereafter, on June 23, 2000, plaintiff amended her petition for a third time to allege that Místate had failed to properly handle and defend the claims against the Richardsons and that it had acted in bad faith, entitling the Richardsons to penalties and attorney’s fees. Plaintiff further alleged that the Richardsons had assigned their claims against Místate to her.

Místate answered the plaintiffs petition denying liability on the basis of certain enumerated policy provisions. It additionally asserted peremptory exceptions |4of no cause or no right of action and res judicata in response to plaintiffs third supplemental and amending petition.

Allstate’s assertions were presented to the district court through a motion for summary judgment and the peremptory exceptions of failure to join indispensable parties and res judicata. In the motion for summary judgment, Místate argued that there was no longer any coverage afforded under the Richardsons’ policy because that policy only covers damages that the insured becomes “legally obligated to pay.” Since the claims against the Richardsons had been dismissed with prejudice, Mí-state argued that its indemnification obligation had ceased. In support of its summary judgment motion, Místate offered a copy of its policy and of the Assignment of Rights and Subrogation Agreement between the plaintiff and the Richardsons. In opposition to that motion, the plaintiff introduced a copy of a letter agreement between plaintiffs counsel and counsel for the Richardsons, outlining the terms of the proposed settlement between the parties.

Following a contradictory hearing on Allstate’s motion for summary judgment and exceptions of res judicata and non-joinder, the district court granted Allstate’s summary judgment in part and denied it in part. The court denied summary judgment with respect to the claims arising from Allstate’s alleged bad faith in handling and defending the claims against the Richardsons, concluding that disputed genuine issues of material fact preclude summary judgment as to these claims, assigned by the Richardsons to plaintiff. However, the district court granted summary judgment in favor of Allstate on the coverage issue. The court found that, pursuant to the terms and conditions of the Allstate policy, coverage is only provided for damages which the insured becomes legally obligated to pay. Since the insureds in this case (the Richardsons) were dismissed from the lawsuit with prejudice, they can no longer be |5found liable to plaintiff. As a result, Allstate can have no liability to the plaintiff under the express terms of its policy.

Allstate requested certification of the partial summary judgment in its favor. Following the district court’s certification of the judgment as final, plaintiff appealed. Allstate answered that appeal, arguing that the district court erred in failing to dismiss plaintiffs claim for Allstate’s alleged bad faith in handling and defending the claim against the Richardsons.

The court of appeal affirmed the judgment of the district court in part and reversed and rendered in part. The court affirmed that portion of the judgment granting summary judgment in favor of Allstate on the issue of coverage, finding that the compromise between the plaintiff and the Richardsons effected a complete extinguishment of the Richardsons’ delic-tual obligation, thereby relieving Allstate of any liability under its policy. The court of appeal reversed the district court ruling denying Allstate’s motion for summary judgment with respect to the claims for bad faith failure to defend and/or settle, finding that the plaintiff failed to demonstrate that she will be able to bear her burden of proof regarding these claims assigned to her by the Richardsons at trial.

Upon plaintiffs application, we granted certiorari to review the correctness of the lower courts’ rulings.

DISCUSSION

The sole issue presented for our consideration is whether summary judgment was properly granted in this case. After hearing oral arguments in this matter, we conclude that summary judgment should not have been granted. As the court of | ^appeal correctly recognized, the intent of the parties to the compromise is central to the resolution of this case. Rollins v. Richardson, 35,171 (La.App. 2 Cir. 12/7/01), 803 So.2d 1028, 1033 (“[W]e find that the intent of the parties to a settlement or compromise between a plaintiff and an insured tortfeasor must be examined to determine whether the tortfeasor’s delictual obligation to which the insurance coverage applies has been released.”). See also, Futch v. Fidelity & Cas. Co. of New York, 246 La. 688, 166 So.2d 274, 277 (1964). Our review of the record reveals the existence of genuine issues of material fact relative to that intent. In particular, the record demonstrates that Allstate did not object, and in fact agreed, to the amendment of plaintiffs petition to name it as a direct defendant in the face of its knowledge that its insureds, the Richard-sons, were being released. Because genuine issues of material fact exist with respect to the confection of the compromise and Allstate’s role in that compromise, summary judgment should not have been granted in this case. Allstate’s motion for summary judgment is denied, and the case is remanded to the district court for further proceedings consistent with this opinion.

DECREE

The judgment of the court of appeal is reversed. Likewise, the judgment of the trial court granting partial summary judgment in favor of Allstate is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.

VICTORY and TRAYLOR, JJ., dissents and assigns reasons.

| VICTORY, J.,

dissenting.

In my view summary judgment in favor of Allstate Insurance Company (“Allstate”) was correctly granted by the lower courts. Two weeks prior to trial, plaintiffs made a strategic decision to settle the lawsuit with their neighbors and to proceed directly against their neighbor’s homeowner’s insurer, Allstate. However, a plaintiff may not amend his petition to add a party defendant at such late date except by leave of court or written consent of the adverse party. La. C.C.P. art. 1151. Accordingly, plaintiffs asked Allstate if they would consent to plaintiffs amending their petition, two weeks prior to trial, to name Allstate as a direct defendant, and Allstate agreed. As stated by the majority, plaintiff then filed a second supplemental and amending petition naming Allstate as a defendant in the main demand, and, “[p]ursuant to its previous agreement, Allstate did not object to its addition as a defendant.” Subsequently, Allstate filed a motion for summary judgment asserting that, because the policy only covers damages that the insured becomes “legally obligated to pay,” and that, because the defendants had been dismissed with prejudice, Allstate’s indemnification obligation had ceased. The lower courts agreed.

li>Now the majority, reasoning that “the intent of the parties to the compromise is central to the resolution of this case,” and that there are “genuine issues of material fact relative to that intent,” has reversed the summary judgment. It is important to note that Allstate was not a party to the compromise settlement. Further, there is no doubt what the plaintiffs and the defendants intended in confecting the compromise, nor in what the plaintiffs intended in adding Allstate as a defendant. The plaintiffs and defendants intended that the defendants be released from liability and that Allstate be named as a direct defendant, and Allstate agreed to be so named. However, Allstate was not asked to waive any policy defenses, and did not do so. Simply because the plaintiffs failed to realize that they created a policy defense when they released the defendants with prejudice does not create a genuine issue of material fact as to its intent.

For all of the above reasons, I respectfully dissent.

hTRAYLOR, J.,

dissents.

With respect to the coverage issue, this court has reversed both the trial court and the court of appeal based upon “genuine issues of material fact” that were not raised at the hearing on the summary judgment and evidence of which was not part of the record.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966B. The article first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover. Racine v. Moon’s Towing, 2001-2837 (La.5/14/02); 817 So.2d 21. Once that burden has been met, the burden shifts to the non-movant to show that there is, in fact, a genuine issue of material fact. See Racine, 817 So.2d at 25.

Here, Allstate, the movant, relied on its policy language which clearly states that Allstate is not liable for damages which its insured is not “legally obligated to pay.” In opposition, plaintiff submitted only a letter agreement between plaintiffs counsel and Allstate’s insured’s counsel which discussed the terms of the settlement.

As recognized by the majority, and pointed out by the court of appeal, the intent of the parties to a settlement is paramount in determining whether the alleged tortfeasor’s insurer has been released. Plaintiff, however, did not submit any | ¡.evidence as to the intent of the parties to the settlement. The trial court correctly based its ruling on the motion for summary judgment on the evidence before it: the dismissal with prejudice of Allstate’s insured, the Allstate policy language, and the letter agreement between counsel for the plaintiff and counsel for the insured. This court is now reversing that judgment based on evidence which was not before the trial court. Plaintiff had the burden of bringing the issue of the parties’ intent before the trial court and failed to do so. This court’s action is protecting the plaintiff from two fatal errors: (1) agreeing to dismiss with prejudice the insured when Allstate’s policy language clearly states that there is no liability for damages the insured is not “legally obligated to pay,” and (2) failing to submit evidence opposing the motion for summary judgment. Plaintiff has come before this court and asked, not for a second bite at the apple, but for a second and third, and has succeeded.

Even if, however, plaintiff had offered evidence as to the intent of the parties to the settlement agreement at the hearing on the motion for summary judgment, the motion for summary judgment should have been granted. As stated by the majority, Allstate agreed not to object to its late inclusion as a direct defendant in the lawsuit and, again as stated by the majority, Allstate did not object. Allstate had no responsibility under our adversarial legal system to point out to the plaintiffs that they were making a mistake. The majority has not stated one single valid reason in its opinion for protecting the plaintiff from her mistakes, but instead vaguely states that “the record reveals the existence of genuine issues of material fact” relating to the intent of the parties, the “confection of the compromise,” and “Allstate’s role in that compromise.” To what record does the majority refer? Certainly not the record in the trial court.

Next, without even addressing it, this court has reversed the court of appeal’s determination that plaintiff did not demonstrate her ability to bear her burden of proof |3at trial as to her claim against Allstate for bad faith in handling and defending the claim. When the non-movant in a summary judgment proceeding would bear the burden of proof at trial on an issue, the movant can meet his burden of production of evidence by pointing out the lack of factual support for an essential element in the case. Racine, 817 So.2d at 24-5. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial.” Racine, 817 So.2d at 25. When a motion for summary judgment is made and supported, an adverse party cannot rely on the allegations contained in his pleadings, but must set forth, by affidavit or otherwise, specific facts showing that there is a genuine issue for trial. La.Code Civ. P. art. 967. Plaintiff did not introduce any evidence which supported her bad faith claim, by affidavit or any other legal means. The court of appeal’s determination that plaintiff had failed to demonstrate that she would be able to bear her burden of proof at trial was correct.

Because there is neither a factual nor a legal basis for reversing the courts below, I dissent.

      . The City of Shreveport was also named as a defendant based on allegations that the City had acted negligently in allowing the unsanitary conditions, of which it had notice, to continue.

      . Allstate additionally assigned as error the district court ruling denying its exceptions of res judicata and non-joinder.

      . Rollins v. Richardson, 35,171 (La.App. 2 Cir. 12/7/01), 803 So.2d 1028.

      . Rollins v. Richardson, 2002-0556 (La.5/10/02), 815 So.2d 829.


author: h KNOLL, Justice. 11 KIMBALL, Justice, | jWEIMER, J.,

text:
    STATE of Louisiana v. Alairis PAYNE.
    No. 2001-KK-3196.
    Supreme Court of Louisiana.
    Dec. 4, 2002.
    Rehearing Denied Jan. 24, 2003.

      Richard P. Ieyoub, Attorney General, James M. Bullers, District Attorney, Michael A. Pitman, Bossier City, Counsel for Applicant.
    John M. Lawrence, Shreveport, George W. Thornell, Counsel for Respondent.
   h KNOLL, Justice.

In the pre-trial stages of this first-degree murder case, we must determine whether the rigid prophylactic rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), concerning defendant’s right to counsel during custodial interrogation, was clearly and unambiguously invoked by defendant, Alairis Payne. The lower courts suppressed defendant’s statements, confession and a videotape of the crime scene, on the grounds of the Edwards prophylactic rule. For the following reasons we reverse, finding that defendant was neither in custodial interrogation nor was custodial interrogation imminent; and further, her comments, “may I call a lawyer' — can I call a lawyer?” were not clear and unambiguous under the circumstances so as to put a reasonable police officer on notice that defendant was invoking her Miranda right to counsel during custodial interrogation.

FACTS AND PROCEDURAL HISTORY

On February 23, 2000, doctors at Schumpert Medical Center summoned the Bossier City Police Department to investigate possible child abuse. The two-year-old child, Sahara Onishea, had been brought to the emergency room by his foster father, Andrew Payne, in an unconscious condition. Dr. Gordon Webb, the attending emergency room physician, noted “severe head injury compatible with blunt trauma. 12 Multiple bruises and abrasions of varying ages suggestive of repeated trauma. Bruises of multiple time interval and over many parts of the body suggestive of physical abuse.” The child was transferred to the Pediatric Intensive Care Unit and underwent surgery to remove a blood clot from the brain. The child was placed on life support, but died four days later on February 27, 2000, as a result of his injuries.

On February 23, 2000, after taking the initial child abuse report at the hospital, the police went to the home of Andrew and Alairis Payne. The Paynes were foster parents not only to the injured child, Sahara Onishea, but also to a six-week-old infant, W.D. Upon arriving at the Payne residence, Detective Joseph Thomerson informed Alairis Payne that the police department was investigating the injury to Sahara and they needed to speak with her at the police station. The police entered her residence and presented her with a consent to search form, which she signed. Defendant was also advised of her Miranda rights by Detective Thomerson and signed a written rights form. Later, Detective Thomerson transported defendant to the Bossier City Police Department. It is undisputed that he did not attempt to interview or interrogate defendant; she was neither handcuffed nor placed under arrest. When defendant arrived at the police department, she waited in the break room approximately fifteen to thirty minutes until she was interviewed by Detective Jimmy Stewart.

Defendant was again informed of her Miranda rights, and gave the first of two tape-recorded statements. In the first statement defendant did not admit to intentionally harming the child. Detective Stewart then met a second time with the defendant and he again advised her of her Miranda rights. He told her of the surgery to remove the blood clot from Sahara’s brain. In this second taped statement,^¿defendant confessed to injuring Sahara. She stated that she had had a migraine, and while bathing the child, she and the child had struggled. Defendant claimed the child pulled her into the bathtub during the struggle whereupon she grabbed the child by the right side of his head and banged the left side of his head against the bath wall approximately three times. She also confessed to abusing the child in the past.

Detective Stewart received consent from defendant to conduct a videotaped walk-through of the residence in which she explained how she had battered the child. Prior to conducting this videotaped walk-through, defendant signed another consent to search form.

After defendant was arrested and indicted for first-degree murder, she filed a motion to suppress statements alleging Detective Stewart coerced a statement from her by use of intimidation. Defendant later filed a supplemental and amended motion to suppress statements alleging she tried to call her attorney before going to the police station on February 23, 2000, by using a cordless phone which one of the police officers took away from her. Defendant claims the subsequent interrogation was conducted in violation of her invocation of her right to have an attorney present during questioning.

The trial court conducted a two-day hearing on the motion to suppress. At the hearing the crucial issue was whether defendant actually made a request for an attorney, and if so, whether Detective Thomerson heard her. The record of this hearing shows conflicting testimony among the witnesses.

Defendant testified her close friend, Jessica Davis, arrived at the house at almost the same time as the police and that she and Ms. Davis were led to a patrol car. Defendant stated she and Ms. Davis were trying to figure out what was going on because no one was answering defendant’s questions. Defendant testified she had a cordless phone in her hand that she brought outside with her. She stated Detective RThomerson took the phone from her and placed it on the roof of his police car. Detective Thomerson turned to speak with someone and defendant turned to Ms. Davis and asked if she should call John, her father-in-law who is an attorney in Detroit, Michigan. Ms. Davis told defendant she should call him, so she picked up the phone from the roof of the police car. Defendant claims Detective Thomer-son took the phone away from her again and asked Ms. Davis to please step over to the other squad car. Defendant stated she tried to call again; at this point Detective Thomerson took the phone from her and locked her in the police car.

Ms. Davis testified defendant had a phone in her hand which Detective Thom-erson took from defendant and placed on the top of the police car. Ms. Davis claimed when defendant emerged from the house, the police had Ms. Davis sit in the front passenger seat of the patrol car in the driveway and had defendant sit in the rear driver’s side of another patrol car parked on the road in front of the house; the doors to the patrol cars were opened at that point. Ms. Davis was not allowed to talk to defendant. Ms. Davis stated defendant said “may I call a lawyer — can I call a lawyer?” and reached up for the phone. Detective Thomerson pushed the phone farther away on top of the car and said “you don’t need this.”

Detective Thomerson testified that he did not hear defendant ask if she should call a lawyer. He stated the last time he saw the cordless phone was when defendant was inside her residence.

In its oral reasons for ruling, the trial court noted the conflicting testimony. The trial court noted Detective Thomerson testified defendant never asked for an attorney. As to defendant, the trial court found she was not credible because she had falsely claimed to have been denied the use of the bathroom and had urinated upon herself, she falsely claimed to have been denied medication for her migraines and she falsely claimed to have been rendered incoherent by medication she had taken. Because her |ficredibility was doubtful, the trial court disregarded defendant’s testimony. The trial court was persuaded by the testimony of Ms. Davis, primarily because her testimony was neither refuted nor rebutted by the State. In accepting Ms. Davis’s testimony, the trial court stated:

[W]e have the testimony of a witness, Mrs. Jess Davis, who said that Ms. Payne asked for a lawyer. That testimony has not been refuted nor has it been rebutted. Mr. Thomerson said that she [defendant] never asked for an attorney.

The trial court rejected the testimony of Detective Thomerson and accepted the testimony of Ms. Davis that the defendant had said “may I call a lawyer — can I call a lawyer?” while reaching for the cordless phone. The trial court granted defendant’s motion to suppress and suppressed all statements defendant made, including her confession and a videotape of the crime scene. In granting the motion, the trial court reasoned Minnick v. Mississippi makes it clear that once a defendant asks for an attorney, all interrogation must cease and the police cannot initiate questioning, unless the defendant voluntarily reinstates the conversation.

The State appealed the ruling of the trial court. The court of appeal converted the appeal to a writ application and denied the writ in a two to one decision, finding the issue turned on a credibility determination and the trial court was in the best position to make that determination. The State filed an application for rehearing, which was not considered in a two to one decision. We granted certiorari on this troubling issue to further examine the legal requirements of the Edwards prophylactic rule. State v. Payne, 01-3196 (3/22/02), 811 So.2d 924.

In urging the trial court erred in granting the motion to suppress, the State contends: (1) that the trial court should not have accepted the testimony of Ms. Davis over the testimonies of defendant and the police officers; and (2) even if we accept the |fitestimony of Ms. Davis, defendant’s statement “may I call a lawyer — can I call a lawyer” is equivocal and ambiguous and therefore not a clear invocation for counsel.

The defendant contends the trial court did not err in granting the motion to suppress, because its ruling was based on a credibility determination and further, the defendant made a clear and unambiguous invocation of her right to counsel.

We did not grant this writ to further examine the credibility determinations of the trial court in accepting Ms. Davis’s testimony over the testimonies of defendant and police officers. We recognize that credibility determinations by the trier of fact are given great weight by reviewing courts and we will not set a credibility determination aside unless it is clearly contrary to the record evidence. See State v. Brooks, 92-3331, p. 11 (La.1/17/95), 648 So.2d 366, 372. Our review of the record shows adequate evidence to support the trial judge, who observed the conduct and demeanor of the witnesses, and found defendant did say “may I call a lawyer — can I call a lawyer?” to Detective Thomerson.

While we accept this credibility determination, however, the legal findings of the trial court are subject to review without the great deference standard we attach to credibility determinations. Notwithstanding defendant said “may I call a lawyer — can I call a lawyer?”, the lower courts should have analyzed this statement before granting the motion to suppress in the context of whether it was a proper invocation of defendant’s right to counsel, i.e., was this statement clear and unambiguous under the circumstances so as to put a reasonable police officer on notice that defendant was invoking her Miranda rights to Counsel during custodial interrogation. See Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

We recognize that this is a troubling and difficult issue as can be seen from our federal and state jurisprudence. There are ad infinitum ways one can invoke one’s right to counsel and there are different “shades” of whether one invoked this right. [7 While we find this issue is difficult and troubling, we are guided by our federal and state jurisprudence that have developed standards that aid us in determining whether a defendant sufficiently invoked his right to counsel.

DISCUSSION

In Miranda v. Arizona, the United States Supreme Court held that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. Miranda, 384 U.S. at 469-473, 86 S.Ct. at 1625-1627. “The right to counsel established in Miranda was one of a ‘series of recommended ‘procedural safeguards’ ... [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.’ ” Davis v. United States, 512 U.S. at 457, 114 S.Ct. at 2354. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Edwards v. Arizona, 451 U.S. at 485-486, 101 S.Ct. at 1885. Of importance to the present case, the Supreme Court in Miranda explained what is meant by custodial interrogation: “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Rhode Island v. Innis, 446 U.S. at 298, 100 S.Ct. at 1688 (citing Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612)(emphasis added). The concern of the Court in Miranda was that the “interrogation environment” created by the interplay of interro-' gation and custody would “subjugate the individual to the will of his examiner” and thereby undermine the privilege against compulsory self-incrimination. Innis, 446 U.S. at 299, 100 S.Ct. at 1688 (citing Miranda 384 U.S. at 457-458, 86 S.Ct. at 1619). The special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected |Rto interrogation. Innis, 446 U.S. at 300, 100 S.Ct. at 1689. “Interrogation,” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. Id.

The purpose of the Miranda-Ad-wards guarantee of right to counsel is to protect the interest of the suspect’s desire to deal with the police only through counsel. State v. Kelly, 95-1663, p. 6 (La.App. 3 Cir. 5/8/96), 677 So.2d 495, 499 (citing McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991)). It is the inherent coercive effect of custody and interrogation on an accused that is the essential predicate to the prescription contained in the Miranda-Ad-wards line of cases, that counsel be present if requested, when an interrogation occurs in a custodial setting. “The [Supreme] Court presumes that the confluence of interrogation and custody generate an intolerable degree of pressure upon a criminal suspect. Thus, the combined impact of interrogation and custody make counsel’s compulsion-dispelling presence— or, at least, the opportunity to claim that presence — essential.” James J. Tomkovicz, Standards for Invocation and Waiver of Counsel in Confession Contexts, 71 Iowa L.Rev. 975, 991 (1986) (footnotes omitted); see also Miranda, 384 U.S. at 460, 86 S.Ct. at 1620. Because the presence of both a custodial setting and official interrogation is required to trigger the Miranda right-to-counsel prophylactic, absent one or the other, Miranda is not implicated. See Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30; Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990) (“It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation”).

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. Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-1885. Once an |flaccused has expressed his desire to deal with the police only through counsel, he 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 484-485, 101 S.Ct. at 1885. It is inconsistent with Miranda and its progeny for the authorities, at their insistence, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. Edwards, 451 U.S. at 485, 101 S.Ct. at 1885 (emphasis added). This “second layer of prophylaxis for the Miranda right to counsel,” McNeil v. Wisconsin, 501 U.S. at 176, 111 S.Ct. at 2208, is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990). Davis, 512 U.S. at 458, 114 S.Ct. at 2355.

The Miranda right to counsel is a prophylactic rule that does not operate independent from the danger it seeks to protect against, i.e., the compelling atmosphere inherent in the process of in-custody interrogation, and the effect that danger can have on a suspect’s privilege to avoid compelled self-incrimination. See Miranda, 384 U.S. at 478, 86 S.Ct. at 1630. The inherent compulsion that is brought about by the combination of custody and interrogation is crucial for the attachment of Miranda rights. See Miranda, 384 U.S. at 478, 86 S.Ct. at 1630 (emphasis added). The Supreme Court stated the invocation of that guarantee “... requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” McNeil, 501 U.S. at 178, 111 S.Ct. at 2209 (emphasis in original).

The applicability of the “ ‘rigid’ prophylactic rule” of Edwards requires courts to “determine whether the accused actually invoked his right to counsel.” Davis v. United States, 512 U.S. at 458, 114 S.Ct. at 2355 (emphasis in original) (citations |10omitted). To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Davis, 512 U.S. at 458-459, 114 S.Ct. at 2355. 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.” Davis, 512 U.S. at 459, 114 S.Ct. at 2355 (citation omitted). If a suspect makes a 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, the cessation of questioning is not required. Id. (emphasis in original). The suspect must articulate his desire to have counsel present with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id. In analyzing the prophylactic rules of Miranda and Edwards, we are mindful that the “value of any prophylactic rule ... must be assessed not only on the basis of what is gained, but also on the basis of what is lost.” Minnick, 498 U.S. at 161, 111 S.Ct. at 495 (Scalia, J., dissenting). “Admissions of guilt are more than merely desirable; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986).

Recently, the United States Fifth Circuit Court of Appeals, sitting en banc, addressed this troubling issue in Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir.2002), and held the suspect’s procedural questions while he was in custodial interrogation did not rise to the level of unambiguous invocation of his right to counsel. In that case, Max Soffar, a Texas state prisoner, applied for a writ of federal habeas corpus. A panel of the Fifth Circuit granted him habeas relief on the issue of his Fifth Amendment rights. The panel opinion, applying a totality of the circumstances | n analysis and remaining mindful of Michigan v. Jackson, wherein the Supreme Court stated that the courts must give a “broad, rather than a narrow, interpretation to a request for counsel,” concluded that Soffar had unambiguously requested counsel during custodial interrogation. Soffar v. Cockrell, 300 F.3d at 595, n. 6; Soffar v. Johnson, 237 F.3d 411, 455 (5th Cir.2000), overruled by Soffar v. Cockrell, 300 F.3d 588 (5th Cir.2002). In overruling the panel decision, the Fifth Circuit examined the suspect’s statements with regard to the “bright-line” rule of Davis, under which “a statement either is such an assertion of the right to counsel or it is not.” Soffar v. Cockrell, 300 F.3d at 595 (quoting Davis, 512 U.S. at 459, 114 S.Ct. at 2355). The en banc court categorized Soffar’s statements made during custodial interrogation as: he asked whether he should get an attorney; how he could get one; and how long it would take to have an attorney appointed. Soffar v. Cockrell, 300 F.3d at 595. The Fifth Circuit, examining its own precedent and decisions of other circuits, found each of these questions has been rejected as procedural and too equivocal to constitute a clear invocation of counsel. Id.

In State v. Abadie, 612 So.2d 1, 5 (La.1993), we found where the suspect unsuccessfully sought legal assistance from an attorney who was a judge-elect, and told the authorities he refused to answer any more questions until he spoke to his attorney, the suspect had invoked his right to counsel with direct, clear and unequivocal requests such that all interrogation had to cease. In Abadie, before reaching the issue of the admissibility of the defendant’s confession, we first had to decide whether the accused had requested the assistance of counsel. The defendant, Thomas Aba-die, had been brought to the police station for questioning in the matter of a homicide. Abadie was advised of his Miranda rights and questioned about the murder. When the questioning turned to an unrelated attempted rape case, Abadie |1grefused to answer any more questions until he spoke to his friend, a local attorney and judge-elect. The attorney spoke to Abadie and advised him that as he was a judge-elect, he could not represent Aba-die or give him advice. Even before Aba-die spoke to the attorney/judge-elect, the police asked Abadie to agree to further questioning under polygraph. In response, Abadie again asked to speak to a lawyer.

In Abadie we examined Miranda and its progeny as it existed then, and we found the request for a lawyer need not be formal or direct, or for a particular attorney, but is sufficiently conveyed by even an unsuccessful attempt to reach a lawyer. Abadie, 612 So.2d at 5 (citing United States v. DeLeon, 412 F.Supp. 89 (D.Vi.1976), State v. Slobodian, 57 N.J. 18, 268 A.2d 849 (1970), United States v. Porter, 764 F.2d 1 (1st Cir.1985), Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985)). In Abadie, we looked to decisions of other jurisdictions to aid us in determining whether the accused had requested counsel. After a thorough analysis of United States Supreme Court opinions and a scholarly treatise, we found that Abadie had made “direct, clear and unequivocal requests for counsel” of two police officers. Abadie, 612 So.2d at 5. It was after our decision in Abadie that the United States Supreme Court addressed the issue of how to determine whether the accused actually invoked his right to counsel. Davis, 512 U.S. at 458, 114 S.Ct. at 2355.

In Davis, the Supreme Court declared that the suspect must “unambiguously request” counsel “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney” in order to cease custodial interrogation. Davis, 512 U.S. at 459, 114 S.Ct. at 2355. The United States Supreme Court specifically declined to extend Edioards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. Id. In declining to extend Edioards the Court stated:

| lgThe rationale underlying Edioards 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 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.... We also noted [in Miranda, 384 U.S. at 485, 86 S.Ct. at 1633] that if a suspect is “indecisive in his request for counsel,” the officers need not always cease questioning. Davis, 512 U.S. at 460, 114 S.Ct. at 2355-2356.

The Court held 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., 512 U.S. at 461, 114 S.Ct. at 2356. Davis established a bright-line rule, under which “a statement either is such an assertion of the right to counsel or it is not.” Soffar v. Cockrell, 300 F.3d at 595 (citing Davis, 512 U.S. at 459, 114 S.Ct. at 2355).

Our finding in Abadie that requires a suspect to make a “direct, clear and unequivocal requests for counsel” has not been abrogated by the Davis decision, but rather is reinforced by the Davis decision. Both Abadie and Davis require that a suspect make a clear and unequivocal request to invoke the Miranda right to counsel.

In the present case, deciding whether defendant’s questions to Detective Thomerson constitute an unambiguous request for counsel articulated clearly such that a reasonable police officer under the circumstances would understand the questions to be a request for an attorney, we remain mindful that “[i]n 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 enforcement.” Davis, 512 U.S. at 461, 114 S.Ct. at 2356.

u In Abadie, we concluded that as the suspect’s request was “direct, clear and unequivocal,” the suspect had invoked his right to counsel such that custodial interrogation must cease. Abadie, 612 So.2d at 5. The suspect must articulate his or her desire to have counsel present with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis, 512 U.S. at 459, 114 S.Ct. at 2355 (emphasis added). In the present case we find that unspecific questions to a police officer at the crime scene, in the initial stages of an investigation, with more than one suspect present, where interrogation is neither occurring nor imminent, cannot be construed as a clear and unambiguous request for the presence of counsel at interrogation. The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Abadie, 612 So.2d at 6 (citing Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90).

Our decision in Abadie calls for a reviewing court to apply an “objective test” that prohibits all police speech or conduct that creates a situation in which the suspect probably will experience the functional equivalent of direct questioning by concluding that the police are trying to get him to make an incriminating response. Id. Under this objective test, in the present case, the conduct of the police at the initial visit to the defendant’s home, and while the defendant was inside of the police car, should not have led the defendant to conclude that the police sought an inculpatory statement. Considering the conduct of the police, we find it did not create a situation in which the suspect experienced the functional equivalent of direct questioning that would implicate In-nis and Abadie.

While Detective Thomerson took the phone from defendant and ultimately |! slocked her in the police car, defendant was not being interrogated. Significantly we note this occurred at the crime scene in the very early stages of the investigation well before custodial interrogation began. Her questions “may I call a lawyer — can I call a lawyer?” were not in response to any questions by Detective Thomerson, who was standing outside of the police car. It is undisputed that Detective Thomerson did not question defendant at the crime scene, or while he transported her to the police department, or at any time. Nor was there any police speech or conduct that was the functional equivalent of interrogation during the period of the initial investigation. Defendant waited at the police department some fifteen to thirty minutes before being questioned by Detective Stewart; before he questioned her, Detective Stewart informed defendant of her Miranda rights and ascertained that her waiver of those rights was knowing and voluntary. Under these circumstances we find defendant’s questions to Detective Thomerson were too ambiguous and equivocal to be considered a sufficient invocation of her right to counsel. To find otherwise “would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity.” Michigan v. Mosley, supra.

We further find it significant that at the time defendant made the statements, which she now claims were an invocation of counsel pursuant to the Fifth Amendment, that she was not subjected to interrogation. Thus the “inherent compulsion” brought about by the combination of custody and interrogation was not present. We classify the questions asked by defendant as ambiguous under these circumstances which showed that she was not being questioned. Where there is no interplay of custody and interrogation, an individual's privilege against self-incrimination is not threatened.

In accordance with the rule announced in Davis v. United States, supra, as a matter of law, we find the defendant’s statements were insufficient to invoke her right to counsel. The suspect must articulate her desire for counsel clearly and 11 (¡unambiguously such that a reasonable police officer, under the circumstances, would understand the statement to be a request for counsel.

DECREE

For the foregoing reasons we reverse the rulings of the lower courts. Defendant’s motion to suppress is hereby denied. This case is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

WEIMER, J., concurs in the result and assigns reasons.

KIMBALL, J., dissents and assigns reasons.

11 KIMBALL, Justice,

dissenting

I dissent from the majority’s determination that defendant’s question, “may I call a lawyer — can I call a lawyer,” made while she was reaching for a cordless phone, was not clear and unambiguous so as to put a reasonable police officer on notice that defendant was invoking her Miranda right to counsel. Moreover, I disagree with the majority’s finding that interrogation of defendant was not imminent when she asked whether she could call a lawyer.

In my view, the totality of the circumstances presented in the instant case indicate defendant clearly and unequivocally expressed her desire to be assisted by an attorney during a time period in which she was in custody and interrogation was imminent. Courts are required to give a broad, rather than a narrow, interpretation to a suspect’s request for counsel. State v. Abadie, 612 So.2d 1 (La.1993). Under a broad interpretation of the situation presented in this case, defendant’s freedom was restrained, and she obviously believed she could not get out of the police car to freely obtain the telephone, which the officer had forcibly removed from her hand and placed out of her grasp on the top of the police ear. Defendant’s statement, “may I call a lawyer — can I call a lawyer,” as she reached for the phone, should have |2indicated to a reasonable police officer at the scene that defendant was requesting an attorney. Although phrased as a question, the words “may I call a lawyer — can I call a lawyer,” combined with defendant’s actions in attempting to reach the telephone, are sufficient to indicate defendant’s desire to be assisted by an attorney in her dealings with the police.

Additionally, custodial interrogation of defendant was imminent at the time she made the request for counsel. The officers went to defendant’s home for the express purpose of questioning her about S.O.’s injuries, removed her from her home in her night clothes, separated her from her friend, told her to sit in a squad car in her driveway, and read her Miranda rights. Defendant was taken to the police station in the squad car and questioned shortly after arriving at the station. At the point she requested counsel, that defendant would be interrogated was a foregone conclusion. Interestingly, in another case decided today, the majority finds it significant for purposes of probable cause that a warrant application contained the fact that two suspects were Mirandized prior to making a statement about an incident that occurred at their residence. In that case, the majority notes that the mere mention of the issuance of the suspects’ Miranda rights in the affidavit would have conveyed to the magistrate that these suspects had “at least been detained in connection with an investigation of an offense .... ” State v. Green, 02-1022, p. 10, n. 10 (La.12/4/02), 831 So.2d 962, 970 n. 10.

Based on credible testimony recounting the events surrounding defendant’s request for counsel, the trial court found that defendant properly asked for an attorney, that her request was not honored, and that her subsequent statements should therefore be suppressed. Such determination should not be disturbed unless it is not supported by the evidence. State v. Harper, 430 So.2d 627, 633 (La.1983). For the 13reasons expressed herein, I believe the trial court’s determination was supported by the evidence. I would therefore affirm the trial court’s judgment granting defendant’s motion to suppress.

| jWEIMER, J.,

concurring.

This matter is an anomaly in that the trial court specifically rejected the defendant’s testimony as being untruthful yet suppressed the defendant’s statements based on the testimony of the defendant’s friend, Jessica Davis. Defendant claims police took her cordless phone away from her as she attempted to call an attorney prior to being taken to the police station during the initial investigation of child abuse. When asked if the officer took the cordless phone away from defendant, Davis testified:

Yes, they reached down and took the phone out of her hand and put it on top of the car. She said, may I call a lawyer — can I call a lawyer, reached up and grabbed — went to grab the phone, and the detective/police officer pushed the phone farther away on top of the car and said, you don’t need this.

When asked specifically if she heard defendant ask to call a lawyer, Davis replied, “Yes.” However, defendant testified:

I was getting ready to make a phone call to my father-in-law, who is an attorney. Detective Thomerson came out and took the phone from me and he put it on the roof of the car. He turned around to speak to somebody. I turned and talked to Jessica. I asked her should I call John .... She said yes, so I picked up the phone again. This is when Detective Thomerson came, he took it from me a second time.

| ¡/Thus, defendant did not testify that she asked to call an attorney; rather, she referred to a call to “John.” Additionally, she admits the officer turned to speak to someone else when she turned to talk to Davis. A fair reading of this testimony is that these statements, including the critical “may I call a lawyer — can I call a lawyer,” involved a discussion between the defendant and her friend Davis. Based on evaluation of the testimony of defendant and Davis, it is not altogether clear the police officer, who the defendant said turned to speak to someone else, even heard the critical statement. The police officers denied the defendant requested an attorney. The trial court never specifically stated the police officer heard defendant’s question, although inferentially that is the finding of the trial court.

Even if one accepts that defendant addressed the police, the fair import of her words is that she posed a query, “may I call a lawyer — can I call a lawyer.”

The United States Supreme Court, in Davis v. United States, 512 U.S. 452, 458-459, 114 S.Ct. 2350, 2353-57, 129 L.Ed.2d 362 (1994), has stated that “if a reference [to an attorney] 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, Edwards [v. Arizona, 101 S.Ct. 1880] does not require that officers stop questioning the suspect.... Unless the suspect actually requests an attorney, questioning may continue.” (Emphasis supplied.) An individual’s assertion of her right to counsel under Miranda must be both clear and unambiguous before police must cease all further interrogation. Id.

The defendant was not questioned by the officers at her residence. Upon arrival at the police station she was given Miranda warnings on four occasions and lashe made no reference to an attorney. Additionally, the following colloquy occurred between the defendant and a detective at the police station.

Q. Before we talked I advised you of your rights, is that correct?
A. Yes.
Q. ... You have a right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have this same right to the advice and presence of a lawyer even if you cannot afford one. ... If you decided to answer questions now without a lawyer present, you will still have 'the right to stop answering at any time.

The defendant indicated she understood these rights. She never referenced a desire to call an attorney.

These same warnings were repeated subsequently without defendant ever referencing a desire to call an attorney. Her responses during the colloquy give meaning and content to her statement to Davis at defendant’s residence which consisted of a random, unconnected comment on the subject of counsel and not a specific question relating to assistance of counsel. See Soffar v. Cockrell, 300 F.3d 588, 606 (5th Cir.2002) and cases cited therein.

The record is abundantly clear that defendant was fully advised of her Miranda rights; that she fully understood her rights; and that she knowingly and intentionally waived those rights. The advice of rights quoted above went beyond the requirements of Miranda; the detective was meticulous in pointing out to her the specifics of her right to counsel. Defendant indicated she understood her rights by her responses which were recorded and through her signing of the rights form. Defendant never requested counsel or even intimated to the detective during the recorded interviews that she wanted to seek the advice of counsel.

As indicated, the defendant posed a query, “may I call a lawyer — can I call a lawyer.” The detective responded to this query in the affirmative. The defendant was advised that she could confer with an attorney at any time before or during | interrogation and she had the right to stop answering questions at any time. The defendant never made further reference to an attorney after she left her residence. As such, the police were justified in questioning the defendant, and her statement should not be suppressed.

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

      . These quotes are provided for background purpose only; they appear in Appellant’s application for writ of certiorari filed with this court.

      . This opinion will refer to this infant child by his initials to protect his identity. La. Sup.Ct. Rule XXXII, § 3.

      . Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990).

      . Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

      . She testified John is her father-in-law, who is an attorney.


author: PER CURIAM. PER CURIAM.

text:
    Joseph WILLIAMS v. RUBICON, INC. and Len Sanford.
    No. 2002-C-0802.
    Supreme Court of Louisiana.
    Dec. 4, 2002.
    Rehearing Denied as Amended Jan. 24, 2003.
    Maria N. Alessandra, Larry E. Dem-mons, New Orleans, Harry A. Johnson, III, Alan J. Robert, Phelps Dunbar, L.L.P., Gonzales, for applicant.
    Robert B. Macmurdo, Victor L. Marcel-lo, Talbot, Carmouche & Marcello, Gonzales, for respondent.
   PER CURIAM.

Upon defendant’s application, we granted certiorari in this case. Williams v. Rubicon, Inc., 02-0802 (La.6/7/02), 818 So.2d 766. After hearing oral arguments and reviewing the record of the matter, we conclude that the judgment below does not require the exercise of our supervisory authority. Accordingly, we recall our order of June 7, 2002 as improvidently granted, and deny plaintiffs application.

ON REHEARING

PER CURIAM.

Rehearing is granted for the sole purpose of clarifying this court’s original decree. The decree of December 4, 2002 in this matter is hereby amended to read as follows:

Upon defendant’s application, we granted certiorari in this case. Williams v. Rubicon, Inc., 02-0802 (La.6/7/02), 818 So.2d 766. After hearing oral arguments and reviewing the record of the matter, we conclude that the judgment below does not require the exercise of our supervisory authority. Accordingly, we recall our order of June 7, 2002 as improvidently granted, and deny defendant’s application.

In all other respects, rehearing is denied.


text:
    In re Russell Patrick WATTS Applying for Intrafamily Adoption of Tess Avery Myers. Terry Lahane Myers v. Erika Dian Brown Watts.
    No. 2002-CC-3212.
    Supreme Court of Louisiana.
    Jan. 8, 2003.
   In re Watts, Russell Patrick et al; Watts, Erika Dian Brown;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Jackson, 2nd Judicial District Court Div. C, Nos. 350, 28,814; to the Court of Appeal, Second Circuit, No(s). 37,129-JWC, 37,130-JWC.

Denied.


text:
    David M. JARROTT, M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS
    No. 2002-CC-2953.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Jarrott, David M. M.D.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2002-8797; to the Court of Appeal, Fourth Circuit, No. 2002-C-1987.

Granted. Relator has submitted notice of intent and a return date order demonstrating his application to the court of appeal was timely. Accordingly, the judgment of the court of appeal refusing to consider the application on procedural grounds is vacated and the application is remanded to the court of appeal for consideration on the merits.

TRAYLOR,. J., would deny writ and stay.


text:
    STATE ex rel. Miguel A. CANTON v. STATE of Louisiana.
    No. 2002-KH-3188.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Canton, Miguel A.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. D, Nos. 199631-002, 207244-0001, 201135-001; to the Court of Appeal, Third Circuit, No. KH 02-00963.

Granted for the sole purpose of transferring the filing to the Court of Appeal, Third Circuit, for its consideration.


text:
    STATE ex rel. Christopher KELLY v. STATE of Louisiana.
    No. 2002-KH-2955.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Kelly, Christopher;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, Nos. 13489, 13490; to the Court of Appeal, First Circuit, No. 2001-KW-2563.

Granted for the sole purpose of transferring the filing to the district court for its consideration under La.C.Cr.P. art. 701(F).


text:
    STATE of Louisiana v. Rannell R. CRAIG.
    No. 2002-K-1894.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re State of Louisiana;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 385-324; to the Court of Appeal, Fourth Circuit, No. 2001-KA-2085.

Granted. This case is remanded to the court of appeal with directions to supplement the record with transcripts of the reading of the bill of information to the jury and of the trial court’s general charge to the jury, and the verdict form returned by the jury and signed by the foreperson. See La.C.Cr.P. art. 914.1(D). The court of appeal is to reconsider its decision in light of the full record as supplemented.


text:
    Pamela ALONSO v. Billie B. LINE, Jr. and Wisner, Adams, Walker & Line, P.C.
    No. 2002-CC-2644.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Alonso, Pamela;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 479,957; to the Court of Appeal, First Circuit, No. 2002 CW 0786.

Granted.


text:
    STATE of Louisiana v. Kirk HATCHER.
    No. 2002-K-2590.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Hatcher, Kirk;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 419-293; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0633.

Granted.


text:
    STATE of Louisiana in the Interest of D.P.B.
    No. 2002-CK-1742.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re State of Louisiana;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, Monroe City Court, No. J000120-MCC; to the Court of Appeal, Second Circuit, No. 36,082-JAC.

Granted.


text:
    STATE of Louisiana v. Michael L. HARRIS.
    No. 2002-K-1589.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re State of Louisiana;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 409-256; to the Court of Appeal, Fourth Circuit, No. 2001-KA-1661.

Granted.


text:
    STATE of Louisiana v. Larry WASHINGTON.
    No. 2002-KK-1346.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re State of Louisiana;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. A, Nos. 97-2112, 97-2112b; to the Court of Appeal, Third Circuit, No. KH 01-01375.

Granted.