source: Caselaw Access Project

author: SMITH, Chief Justice, DICKINSON, Justice,

license: Public Domain

text:
    Justin HAYNES v. STATE of Mississippi.
    No. 2005-KA-00722-SCT.
    Supreme Court of Mississippi.
    June 8, 2006.
    Rehearing Denied Aug. 10, 2006.

      Edward C. Fenwick, Kosciusko, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. After an Attala County grand jury indicted sixteen-year-old Justin Haynes on charges of murder, sexual battery, and arson, venue was transferred to Rankin County. Haynes was tried and found guilty of murder, sexual battery, and first degree arson, and sentenced to consecutive sentences of life for murder, thirty years for sexual battery, and twenty years for first degree arson. Haynes subsequently filed a motion for a new trial, or in the alternative, judgment not withstanding the verdict, which motions were denied.

¶2. Aggrieved, Haynes appeals to this Court, contending (1) the court erred in changing venue to Rankin County and in denying his motion to quash the venire, which was composed of only twelve percent African-American jurors in a county with a seventeen percent African-American population; (2) the court erred in failing to suppress Haynes’ confession to law enforcement officers after he invoked his right to counsel; and (3) the evidence did not support the judgment.

FACTS

¶ 3. In the early morning hours of February 9, 2004, a newspaper delivery woman reported a house on fire on South Huntington Street in Kosciusko, Mississippi. Kosciusko Police Officer Carl Black and Kosciusko Firefighter Mark Hill, were some of the first responders to arrive at the house. Officer Black testified smoke was originating from the rear of the house, and that he noticed window screens located on the back of the home had been removed, as well as a broken window pane located in the back door. Officer Black also testified that he found a note in the driveway which read, “[d]o not say anything unless the note tells you. Shake your head yes when you finish reading this note.” After extinguishing the fire, Hill and other officials discovered the body of fifty-nine-year-old Jeanette Nowell, a paraplegic, lying on her bed. Even though slash wounds were found on Nowell’s neck, the pathologist listed Nowell’s primary-cause of death as smoke inhalation.

¶ 4. Later that morning, Kosciusko Police Officer Matt Steed was eating at a McDonald’s restaurant when Haynes, a McDonald’s employee, approached him and said that he knew “who killed that lady last night.” Officer Steed testified that Haynes told him that Barry Love was responsible and then Haynes described in detail how Love broke into the house and killed Nowell. Police investigator Curtis Pope testified Haynes repeated the same story to him, and that Haynes subsequently confessed that he, not Love, committed the crime. Physical evidence found at the crime scene, including fingerprints and seminal fluid, corroborated Haynes’ confession.

DISCUSSION

I. WHETHER THE COURT ERRED IN CHANGING VENUE TO RANKIN COUNTY AND IN DENYING HAYNES’ MOTION TO QUASH THE VENIRE.

¶ 5. Haynes first argues that the trial should not have been transferred to Rankin County, a county where black citizens constitute only seventeen percent of the demographic, as compared to Attala County, whose black citizens make up forty percent of the demographic. Instead, Haynes argues his trial should have been moved to a county with similar racial demographics as Attala County.

¶ 6. However, “a defendant has no right to a change of venue to a jurisdiction with certain racial demographics.” Mitchell v. State, 886 So.2d 704, 709 (Miss.2004) (citing De La Beckwith v. State, 707 So.2d 547, 597 (Miss.1997)); see also Simon v. State, 633 So.2d 407, 412 (Miss.1993), vacated on other grounds, 513 U.S. 956, 115 S.Ct. 413, 130 L.Ed.2d 329 (1994), on remand, 679 So.2d 617 (Miss.1996). Furthermore, “[mjotions for change of venue are left to the trial court’s sound discretion.” Swann v. State, 806 So.2d 1111, 1116 (Miss.2002) (citing Davis v. State, 767 So.2d 986, 993 (Miss.2000); Hickson v. State, 707 So.2d 536, 542 (Miss.1997)).

¶ 7. Here, the circuit judge moved the trial to Rankin County, after considering factors such as where Haynes could obtain a fair and impartial trial, away from pretrial publicity. The circuit judge also considered courthouse facilities, proximity from the transferor county, and the location of witnesses. Based on Mitchelt and the trial judge’s findings, we find no abuse of discretion.

¶ 8. Haynes also argues that the circuit judge improperly denied his motion to quash the venire which was only twelve percent black, when Rankin County’s demographic is seventeen percent black. In order to show a violation of the right to an impartial jury representing a fair cross-section of the community, a defendant must show “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepre-sentation is due to systematic exclusion of the group in the jury-selection process.” Gray v. State, 887 So.2d 158, 165 (Miss.2004) (citing Lanier v. State, 533 So.2d 473, 477 (Miss.1988)).

¶ 9. Here, the venire from which the jury was selected was produced by a computer which randomly selected names from the voter rolls of Rankin County. Haynes made no objection to the selection process, nor did he present any evidence indicating systematic exclusion of blacks in the jury-selection process. As the circuit judge noted, Haynes objected only to the results of the selection process, not the manner in which the jury was drawn. Because Haynes has failed to make a showing of any of the prima facie elements, this Court finds this argument is, without merit.

II. WHETHER THE COURT ERRED WHEN IT FAILED TO SUPPRESS HAYNES’ MARCH 3, 2004, CONFESSION WHICH WAS MADE AFTER HAYNES INVOKED HIS RIGHT TO COUNSEL.

A. Confession

¶ 10. On February 9, 2004, Haynes was arrested for Nowell’s murder. During Officer Pope’s first meeting with Haynes, Officer Pope first advised Haynes of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At this time Haynes did not request an attorney. Officer Pope met with Haynes a second time, and again advised Haynes of his Miranda rights. However, this time, Haynes requested counsel, and Officer Pope subsequently stopped the interview. About one week later, Haynes received counsel. On March 3, 2004, Officer Pope received a phone call from the jail informing Officer Pope that Haynes had asked to speak with him.

¶ 11. Thereafter, Officer Pope and Detective Blakely went to the jail and met with Haynes, re-advised Haynes of his rights, and had Haynes sign a waiver form. Haynes did not say he wanted to talk about his case, but instead asked Officer Pope several questions about his bond, scheduling, and a preliminary hearing. Although Officer Pope’s testimony is unclear as to the sequence of the remaining conversation’s topics, the record provides a general description about the details of the conversation. At some point Officer Pope asked Haynes if anything else was bothering him, to which Haynes shook his head, and then began talking about problems at the jail.

¶ 12. Following this discussion, Officer Pope asked Haynes “if he wanted to tell us anything about the- situation.” Again, Haynes shrugged his shoulders. On cross-examination during a pretrial motion, defense counsel asked Officer Pope what he meant by “situation.” Officer Pope replied “[w]ell, the whole situation. We probably were talking about the charges.” However, Officer Pope went on to say “I don’t think I would, I ever directly brought up the address or anything like that.”

¶ 13. Officer Pope then asked Haynes if he previously had told the truth, to which Haynes shrugged his shoulders again. At some point Haynes discussed his vocational activities, his instructor, and fishing, although the record is not clear as to when this discussion took place. Officer Pope then stated Haynes was told that it was obvious he had something bothering him. Officer Pope stated he and Detective Blakely continued talking with him. Officer Pope testified Haynes eventually put his head down, took a deep breath, raised his head, and said “I’m ready to do my time and be a man.” Officer Pope stated Haynes confessed that he attempted to kill Nowell and set fire to her home, but never admitted having intercourse with her.

¶ 14. After the confession, Officer Pope stated he and Detective Blakely asked Haynes if he would write down or allow a videotaping of his statement. Officer Pope testified Haynes told him no, because Haynes’ attorney did not want him to give any statements. Thereafter, Officer Pope asked Haynes if he would like to speak with his attorney, to which Haynes responded affirmatively. After being contacted, - Haynes’ attorney went to the jail and after talking with Haynes, told Officer Pope that he could not advise his client to give a statement at that time.

¶ 15. Haynes claims his confession was the result of police interrogation, and therefore was inadmissible as a violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Whether a confession is admissible is a fact-finding function for the trial court, and its decision will not be overturned unless the trial, court applied an incorrect legal standard, committed manifest error, or made a decision against the overwhelming weight of the evidence. Thorson v. State, 895 So.2d 85, 115 (Miss.2004); Payton v. State, 897 So.2d 921, 935 (Miss.2003); Swinney v. State, 829 So.2d 1225, 1235 (Miss.2002).

¶ 16. In Edwards, the United States Supreme Court held “that an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 U.S. at 484-45, 101 S.Ct. 1852; see also Minnick v. Mississippi, 498 U.S. 146, 156, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Kirkland v. State, 559 So.2d 1046, 1047 (Miss.1990).

¶ 17. In other words, once an accused has invoked his right to counsel, any statements given by the defendant in response to further police questioning are admissible only where (1) the defendant initiated further discussions with the police and (2) knowingly and intelligently waived the rights he had invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

¶ 18. At first glance, it would appear that any type of conversation initiated by a defendant would fall under the Edwards exception. However, in Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality opinion), the United States Supreme Court held otherwise:

While we doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to “initiate” any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards.

Stated differently, the Supreme Court’s use of the term “initiate” involves more than the inquiry of simply “who talks first.” See Sattayarak v. State, 887 P.2d 1326, 1329 (Okla.Crim.App.1994).

¶ 19. In Bradshaw, the Supremé Court held that the defendant’s ambiguous statement, “[w]ell, what is going to happen to me now?” expressed a desire to open up a generalized discussion about the investigation. 462 U.S. at 1045-46, 103 S.Ct. 2830 (plurality opinion); Id. at 1050, 103 S.Ct. 2830 (Powell, J., concurring) (”[T]he facts and circumstances, when viewed in their entirety, clearly establish a valid waiver of the right to counsel). In the case at bar, after invoMng the right to counsel, Haynes admits to initiating conversation as to his bond and other matters, but argues he did not initiate a conversation as to the charges he was facing.

¶ 20. For this Court, this case is of first impression with regard to what constitutes “initiation” as to a conversation relating directly or indirectly to the investigation and conversation relating to routine incidents of the custodial relationship.

¶ 21. Although this Court is not bound by case law from other states, we look to Kraft v. State, 713 S.W.2d 168 (Tex.App. Houston 1st Dist.1986) (affirmed on appeal for separate reason), which provides guidance as to how other courts have construed inquiries “relating to routine incidents of the custodial relationship.” In Kraft, the defendant was arrested for driving while intoxicated. Id. at 169. Kraft was informed of his Miranda rights and thereafter stated he wanted to call his lawyer. Id. While Kraft was on the phone, - an officer told the defendant that his attorney could not come down to the police station. Id. After hanging up, Kraft asked the officer whether the advice he received over the phone was correct; specifically, whether a bondsman could get him out of jail. Id. at 169-70, 172. The officer told Kraft he would be able to call a bondsman, and then the officer recommenced questioning. Id. at 169-70.

¶ 22. Although a Texas trial court held the defendant’s question reinitiated conversation with the officer, the Texas Court of Appeals held otherwise: “[ijnquiries about bail are the type of necessary inquiries arising out of the incidents of the custodial relationship, distinguished in Edwards from conversations evincing a desire to open up more generalized discussion relating to the investigation.” Id. at 172 (emphasis added). The court went on to find that the State failed to show a knowing and intelligent waiver of Kraft’s Fifth Amendment right to have counsel present during interrogation because the police officer repeatedly told the defendant that his attorney could not come to the police station during the interview. Id.

¶23. In this case, Haynes asked to speak to Officer Pope regarding what he terms “procedural matters,” including bond, scheduling, and a preliminary hearing. Following Texas’ lead in Kraft, we find those inquiries are matters “relating to routine incidents of the custodial relationship” as discussed in Bradshaw. Therefore, Haynes’ questions did not “initiate” a conversation as the word was used in Edwards.

¶ 24. Moreover, at no point in Officer Pope’s testimony did he say Haynes asked «other questions which “evinced a willingness and a desire for a generalized discussion about the investigation.” See Bradshaw, 462 U.S. at 1046, 103 S.Ct. 2830; United States v. Velasquez, 885 F.2d 1076, 1085 (3d Cir.1989); see also United States v. Whaley, 13 F.3d 963 (6th Cir.1994) (“[A]n Edwards initiation occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case.”) In Smith, 469 U.S. at 98, 105 S.Ct. 490, the Supreme Court stated:

Edwards set forth a “bright-line rule” that all questioning must cease after an accused requests counsel. In the absence of such a bright-line prohibition, the authorities through “badgerfing]” or “overreaching” — explicit or subtle, deliberate or unintentional — might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.

(Citations omitted). In this case, it was only after Officer Pope and Detective Blakely’s questions, specifically, “if he wanted to tell us anything about the situation,” whether Haynes had told the truth, and what was bothering him, that Haynes gave his confession. Therefore, Officer Pope and Detective Blakely’s questions constituted interrogation after Haynes invoked his right to counsel, and those, questions were in violation of Edwards.

¶25. However, the State argues that because Haynes received his Miranda rights and signed a waiver of those rights before the conversation took place between Haynes and the two officers, the trial court was correct in allowing Haynes’ confession into evidence. Moreover, the State argues, neither Officer Pope nor Detective Blakely used any threats, promises, or coercion to obtain Haynes’ confession.

¶26. Essentially, the State is asking this Court to skip the first step of the Edwards analysis, which requires this Court to determine whether the defendant initiated further discussions with the police, and focus only on the second step, which requires this Court to determine whether the defendant knowingly and intelligently waived the rights he had invoked. We find this argument is without merit. See United States v. Cannon, 981 F.2d 785, 789 (5th Cir.1993) (“Determining who initiated the conversation after [defendant] invoked his right to counsel is essential to a Fifth Amendment inquiry.”) (citing Bradford v. Whitley, 953 F.2d 1008, 1010 (5th Cir.1992)). Even if Haynes knowingly, intelligently, and voluntarily waived his right, the waiver does not cure a violation of Edwards. See United States v. Webb, 755 F.2d 382, 390 (5th Cir.1985) (citing Solem v. Sturnes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d.579 (1984)).

¶ 27. A case dealing with both defendant initiation and waiver of rights is Sattayarak, 887 P.2d at 1329. There, Satta-yarak invoked her right to counsel during custodial interrogation. Id. The next morning, she was handcuffed and placed in a car with a police officer. Id. As the car began to drive off, she asked the officer where they were going. Id. In response, the officer told her their destination and then asked if she had made any statements to other officers. Id. Before she could answer, the officer read Sattayarak her Miranda' rights. Id. The officer went on to ask her if she would answer his questions and give a statement. Id. The Oklahoma criminal appeals court not only held Sattayarak’s question “could not be con-struéd as an invitation to discuss any aspect of the investigation,” but also held the waiver “was the result of police-initiated questioning and [was] not valid.” Id. at 1329-30. As such, the court held it was error to admit Sattayarak’s statements given after the officer initiated the conversation. Id. at 1330.

¶ 28. In this case, although Officer Pope had Haynes sign a waiver of his Miranda rights before any conversation took place, just as in Sattayarak, it was the officers who initiated discussion relating to the investigation when Officer Pope asked Haynes “if he wanted to tell us anything about the situation,” whether he had told the truth, and what was bothering him.

¶ 29. Furthermore, to accept the State’s argument that Haynes waived his right to counsel would invalidate the “initiation” distinction set forth in Bradshaw. Adopting the State’s position would allow an officer to question a defendant subsequent to the invocation of counsel, where the defendant asked a question that is custodial in nature.

¶ 30. Because the trial judge allowed Haynes’ confession into evidence based on the judge’s finding that Haynes’ “initiated” contact with Pope in the sense that Haynes was essentially the “first to speak,” we find the trial judge erred by applying an incorrect legal standard. As case law shows, an initiation by a defendant regarding inquiries relating to the custodial relationship does not constitute an “initiation” within the meaning of Edwards. As such, Officer Pope and Detective Blakely violated Haynes’ Fifth Amendment right under Edwards when the officers began questioning Haynes about the investigation. Haynes had previously invoked his right to counsel and reinitiated conversation with Pope only as to matters of bond, scheduling, and preliminary hearing. Therefore, we find the circuit judge erred in admitting the confession into evidence.

B. Harmless Error

¶ 31. We must now determine whether the admission of the confession constituted harmless error, thus allowing the verdict to stand. “The admission of confessions obtained in violation of Edwards and its progeny constitutes trial error, and is therefore amenable to harmless error analysis.” Goodwin v. Johnson, 132 F.3d 162, 181 (5th Cir.1998); United States v. Webb, 755 F.2d 382, 392 (5th Cir.1985). In order for a violation of a constitutional right to be held harmless, this Court must determine that the violation was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Similarly, this Court has held “errors involving a violation of an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.” Clark v. State, 891 So.2d 136, 142 (Miss.2004) (citing Riddley v. State, 111 So.2d 31, 35 (Miss.2000)).

¶ 32. Here, without Haynes’ confession, the State submitted only circumstantial evidence establishing that Haynes’ actually set the fire which led to Nowell’s death. Although DNA of the semen found on Nowell’s body matched Haynes’ DNA indicating sexual battery, the State presented little concrete evidence actually showing Haynes was responsible for setting the fire. Only a small burn on Haynes’ jacket as well as the odor of smoke linked him to the fire. Without Haynes’ confession, the jury may have given different weight to the State’s evidence, and possibly in Haynes’ favor. See Palm v. State, 748 So.2d 135, 142 (Miss.1999) (“While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision.”) (citing Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

¶ 33. Moreover, Haynes’ argument that Love may have played a role in the crime also constitutes a shift in the trial’s dynamic. Haynes argued during trial that police did not fully investigate Love as a suspect in the crime, although Haynes originally told police Love perpetrated the crime. Haynes also argued that police did not request Love’s clothes to check for ignitable fluids in order to show Love might have caused the fire, nor did they check Love’s shoes to determine whether they matched a shoe print found at Nowell’s home. Furthermore, without Haynes’ confession, the jury might have questioned 'Love’s credibility. Haynes pointed out Love’s inconsistent stories as to how Love came into possession of Nowell’s gun. Even though Love’s mother testified Love was at her house the night of the murder, when confronted, Love originally denied knowing about the gun. Love later changed his story stating Haynes sold him the gun.

¶ 34. However, the evidence against Haynes, disregarding his confession, is overwhelming and links him to the scene of the crime. The evidence includes Haynes’ DNA found at the crime scene; Haynes’ fingerprints found on a note outside Nowell’s home; a burnt spot on Haynes’ jacket, as well as the odor of smoke; Haynes’ knowledge of the crime as told to Officer Steed and Officer Pope, alleging Love was responsible for the crime; that Haynes’ grandmother served as Nowell’s caretaker; bullets taken from Nowell’s home were found in the floorboard of the car belonging to Haynes’ grandmother; a piece of cloth found at Nowell’s home was similar to a piece found in the car; Haynes had possession of his grandmother’s car keys the night of the crime; and Love’s testimony that Haynes sold him a gun that was registered in Nowell’s name and was taken from her home. Based on this large amount of evidence establishing Haynes’ culpability, we find the circuit judge’s admission of Haynes’ confession was harmless beyond a reasonable doubt.

¶ 35. Finally, although this Court held in Balfour v. State, 580 So.2d 1203, 1209 (Miss.1991), that the admission of a defendant’s full confession did not constitute harmless error where the confession was obtained in violation of Edwards and no other confessions were presented into evidence, we find Balfour is distinguishable from this case. In Balfour, this Court found the defendant’s Fifth and Fourteenth Amendment rights were violated when the officers reinitiated interrogation after the defendant had invoked her right to counsel. Id. Here, however, Haynes initiated the meeting with Officer Pope and Detective Blakely in which Haynes subsequently gave a confession.

¶ 36. Because we find the admission of Haynes’ confession constituted harmless error beyond a reasonable doubt, we find no reversible error.

III. WHETHER THE TRIAL COURT’S JUDGMENT IS SUPPORTED BY THE EVIDENCE.

¶ 37. Haynes argues the evidence presented at trial is insufficient as a matter of law to warrant a conviction on the three counts of the indictment. Additionally, Haynes argues the weight of the State’s evidence was not sufficient for a reasonable juror to find him guilty.

¶ 38. When determining whether the evidence is sufficient to sustain a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Excluding Haynes’ confession, and considering only the evidence the State presented in the light most favorable to the State, we find sufficient evidence existed to convict Haynes of murder, sexual battery, and first degree arson. As discussed in our harmless error analysis above, Haynes’ DNA and fingerprints were found at the crime scene, Haynes had detailed knowledge of the crime as related to Officer Steed and Officer Pope, alleging Love was responsible for the crime, as well as other factors connecting Haynes to the crime.

¶ 39. When determining whether a verdict is against the weight of the evidence, this Court weighs the evidence in the light most favorable to verdict. Bush, 895 So.2d at 844. Moreover, “the verdict must be ‘so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Dilworth v. State, 909 So.2d 731, 737 (Miss.2005) (citing Bush, 895 So.2d at 844). Again, excluding Haynes’ confession, Haynes provided little, if any, evidence or explanation to refute the State’s evidence that connected him to the crime scene. Therefore, we cannot say the verdict was contrary to the overwhelming weight of the evidence so as to create an unconscionable injustice. See id.

CONCLUSION

¶ 40. Although we find the circuit judge erred when he admitted Haynes’ confession into evidence, we find the admission of Haynes’ confession constituted harmless error beyond a reasonable doubt. We do so based on the State’s overwhelming evidence presented against Haynes. We also find the evidence sufficient to sustain the jury’s verdict. Finally, we hold that the jury’s verdict is consistent with the weight of the evidence presented by the State. Therefore, we affirm the circuit court’s judgment.

¶ 41. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF ARSON (FIRST DEGREE) AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE IMPOSED IN COUNT II SHALL RUN CONSECUTIVE TO THE SENTENCE IMPOSED IN COUNT I. THE SENTENCE IMPOSED IN COUNT III SHALL RUN CONSECUTIVE TO THE SENTENCES IMPOSED IN COUNT I AND COUNT II.

EASLEY AND CARLSON, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER AND COBB, P.JJ., AND GRAVES, J. DIAZ, J., NOT PARTICIPATING.

DICKINSON, Justice,

Dissenting:

¶ 42. I agree with Parts I and III of the plurality opinion, but because I am unable to agree with Part II, I respectfully dissent.

¶ 43. The plurality agrees that Haynes’ constitutional rights were violated, but declares the violation harmless. In my view, the harmless error analysis employed by this Court in this case, and in other recent cases, is flawed. We have departed from guidelines set forth by the United States Supreme Court, instead employing our own tests for determining harmless error. Our analysis has all but eviscerated harmless error analysis, turning it into a review of the weight and sufficiency of the evidence, rather than an independent review of whether the unconstitutionally admitted evidence contributed to the conviction.

¶ 44. All fifty states and the federal system permit harmless error analysis in order to save convictions from reversal based on errors which do not affect the substantial rights of the parties. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Harmless errors are only those “which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id. In conducting harmless error analysis, this Court has the power and duty to review the record de novo in order to determine the error’s effect. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Harmless error may apply to cases where an accused’s constitutional rights were violated. Chapman, 386 U.S. at 22, 87 S.Ct. 824. This includes involuntary or coerced confessions, Fulminante, 499 U.S. at 308, 111 S.Ct. 1246, and violations of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and its progeny. See Goodwin v. Johnson, 132 F.3d 162, 181 (5th Cir.1997).

¶45. The violation of a constitutional right may not be deemed harmless unless certain guidelines are followed, as set forth by the United States Supreme Court. The current version of harmless error analysis was announced by the United States Supreme Court in Chapman but traces its origins back to Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). In Chapman, the Court held that, before a federal constitutional error can be held harmless, the Court must be able to declare a belief that it was harmless beyond a reasonable doubt. 386 U.S. at 24, 87 S.Ct. 824. Accordingly, the Court placed the burden on the beneficiary of the error to prove there was no injury; otherwise reversal of the erroneously obtained judgment is required. Id.

¶ 46. The phrase “harmless beyond a reasonable doubt” has now become synonymous with harmless error analysis, but this Court’s current usage of that phrase has set it loose from its original moorings. The Chapman Court found little difference between the phrase “harmless beyond a reasonable doubt” and the Court’s holding in Fahy. Id. In Fahy the Court held:

We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.

Fahy, 375 U.S. at 86-87, 84 S.Ct. 229 (emphasis added). While the United States Supreme Court’s wording has changed over the years, the basic tenet remains the same-the impact of the erroneously admitted evidence, rather than the properly admitted evidence, should be weighed to determine what errors are harmless. Fulminante, 499 U.S. at 296, 111 S.Ct. 1246.

¶ 47. In Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the United States Supreme Court held harmless the admission of confessions by non-testifying co-defendants in violation of the defendant’s right of confrontation. While the Court discussed the overwhelming evidence of guilt in that case, it did not base its decision on the weight and sufficiency of the untainted and cumulative evidence. Id. The Court followed the Chapman procedure by examining the impact of the improperly admitted confessions on the specific facts of that case:

Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two-confessions on the minds of an average jury. We admonished in Chapman against giving too much emphasis to ‘overwhelming evidence’ of guilt, stating that constitutional errors affecting the substantial rights of the aggrieved party could not be considered to be harmless. By that test we cannot impute reversible weight to the two confessions. We do not depart from Chapman; nor do we dilute it by inference. We reaffirm it. We do not suggest that, if evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on the evidence in this record. The case against Harrington was not woven from circumstantial evidence.

Id. (Emphasis added; citations omitted). See also Fulminante, 499 U.S. at 296, 111 S.Ct. 1246 (harmless error analysis required the Court to “determine[ ] whether the State has met its burden of demonstrating that the admission of the confession to Sarivola did not contribute to Ful-minante’s conviction.”).

¶ 48. While it is unclear at what point this Court’s analysis changed direction, the resulting impact is profound. Our contemporary approach, as recently announced in Clark v. State, 891 So.2d 136, 142 (Miss.2004), holds that “errors involving a violation of an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.” This level of review deprives this Court of its role in protecting the accused’s constitutional rights, leaving the issue squarely in the hands of the trial court, whose decisions we now merely review for the weight and sufficiency of the evidence. Chapman requires this Court to do more. We are required, in my view, to inquire into the character and quality of the tainted evidence to determine if it reasonably contributed to the conviction. It is simply not enough to say that, had the tainted evidence been excluded, the admissible evidence was strong enough to secure a conviction.

¶ 49. Turning to the present case, it is beyond question that the police violated Haynes’ Fifth and Fourteenth Amendment fights as espoused by Edwards. I cannot fathom how the plurality could conclude the tainted evidence could not possibly have contributed to the conviction. The United States Supreme Court has agreed that a defendant’s confession is perhaps the most probative and prejudicial evidence that the State can produce at trial. Fulminante, 499 U.S. at 296, 111 S.Ct. 1246 (finding admission of coerced confession was not harmless error). Sitting as an appellate court, we cannot say the weight and credibility the jury gave to Haynes’ confession was inconsequential, especially where the remainder of the State’s evidence was circumstantial. See Harrington, 395 U.S. at 254, 89 S.Ct. 1726; Payne, 356 U.S. at 568, 78 S.Ct. 844. And beyond that, we certainly cannot say the unconstitutionally secured confession did not reasonably contribute to Haynes’ conviction. Indeed, absent the constitutionally forbidden confession, honest and fair-minded jurors might very well have arrived at not-güilty verdicts. See Chapman, 386 U.S. at 25, 87 S.Ct. 824.

¶ 50. This Court has previously found a similar Edwards violation to be reversible and not harmless. Balfour v. State, 580 So.2d 1203, 1209 (Miss.1991). I disagree with the plurality’s conclusion that Balfour and the present case are distinguishable. In both cases the police violated the accused’s rights in conducting a custodial interrogation following a request to have counsel present. The fact that Balfour did not reinitiate the discussion with the police while Haynes did is immaterial. In the present case, Haynes’ reinitiating dealt only with matters related to bond, scheduling, and his preliminary hearing. When the police questioned Haynes further about general matters related to the charges against him, they clearly violated his Fifth and Fourteenth Amendment rights. These were the same rights the police violated in Balfour, and the minor underlying factual distinctions are not enough to distinguish the hard and fast rule.

¶ 51. Once he invoked his right to counsel, Haynes had a constitutional right not to be questioned without his counsel present, and the violation of that right should not be emasculated by other evidence of guilt. I would reverse the trial court’s judgment and remand this case for a new trial which excludes evidence of Haynes’ confession. For these reasons, I must respectfully dissent.

WALLER AND COBB, P.JL, AND GRAVES, J., JOIN THIS OPINION.

      . Defendants' inquiries regarding requests to use the telephone, get a drink of water, to contact his mother, whether the defendant would be held overnight, and what charges were being asserted against the defendant have all been held to arise out of incidents of the custodial relationship. Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2830; Potts v. Commonwealth, 35 Va.App. 485, 546 S.E.2d 229, 234 (2001); United States v. Lynch, 813 F.Supp. 911, 913 n. 4 (D.N.H.1993); State v. Barmon, 67 Or.App. 369, 679 P.2d 888, 893 (1984).


author: RANDOLPH, Justice,

text:
    HINDS COUNTY BOARD OF SUPERVISORS and Hinds County Circuit Clerk v. Lilly M. ABNIE.
    No. 2005-IA-00185-SCT.
    Supreme Court of Mississippi.
    July 27, 2006.

      E. Charlene Stanley Priester, Jackson, attorney for appellants.
    Stephen W. Mullins, Ocean' Springs, attorney for appellee.
   RANDOLPH, Justice,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On October 27, 2000, the Hinds County Circuit Court issued an Order regarding the payment of filing fees, which included the following, “each individual plaintiff in a consolidated action must pay a filing fee the same as any other plaintiff in any other action. Failure to pay a filing fee in accordance with this order may result in the dismissal of the complaint of a non-paying plaintiff.”

¶ 2. In 2002, 710 plaintiffs, Lilly M. Ab-nie, et al. (collectively “Plaintiffs”) filed a consolidated action against Morton International, Inc., et al., in the Hinds County Circuit Court (“Circuit Court”). Pursuant to a directive by the Hinds County Circuit Clerk (“Circuit Clerk”), each individual plaintiff was required to. pay a $75.00 filing fee, totaling $53,250.00. Plaintiffs were also assessed administrative costs in the amount $14,200.00. Thus, a total of $67,450.00 was paid to the Circuit Clerk.

¶ 3. After removal to and remand by the United States District Court, Southern District of Mississippi, a Motion to Transfer Venue to Jackson County was granted and filed on March 10, 2004. As a result of the transfer, Plaintiffs were required to pay an additional $41,325.00 in filing fees to the Jackson County Circuit Clerk, albeit with assurance they would be reimbursed by the Jackson County Circuit Clerk when the filing fees from Hinds County were transferred.

¶ 4. In a separate proceeding, this Court issued an Order upon petition of the judges of the Fifth Circuit Court District to review and approve new local rules, as proposed. On September 4, 2003, in an en banc Order, this Court approved the local rules as proposed by the Fifth Circuit District’s judges, with the exception of proposed rule 4. Rule 4, if approved, would have authorized the Fifth Circuit District’s circuit clerks to charge a separate filing fee to each plaintiff in a case. This Court held the Legislature established the statutory fees allowed to be charged by clerks, and “no more.” Miss.Code Ann. Section 25-7-1 and Section 25-7-13. Miss.Code Ann. Sect. 25-7-13 provides a filing fee for “docketing, filing, marking and registering each complaint, petition and indictment,” and mandates that “the fee set forth in this paragraph shall be the total fee for all services performed by the clerk up to and including entry of judgment with respect to each complaint, petition or indictment.”

¶ 5. On June 1, 2004, the Hinds County Circuit Court referenced this Court’s September 4, 2003 Order, re: Fifth Circuit Court District local rules in its findings and ordered, “the filing fees of $67,450, less statutorily permitted administrative fees, if any, paid to the office of the Hinds County Circuit Clerk shall be transferred to the Circuit Court of Jackson County as soon as practicable.” The Circuit Court further ordered that “to the extent that the filing fees of $67,450 comprised excess fees that were paid into the Hinds County .General Fund at the end of 2002, the Circuit Clerk of Hinds County and the Hinds County Board of Supervisors shall forthwith transfer filing fees paid in the herein case to the office of the Jackson County Circuit Clerk, as soon as practicable.”

¶ 6. Plaintiffs furnished a copy of the transferring Plaintiffs’ filing fees Order to the Circuit Clerk and the Hinds County Board of Supervisors (“Board”). Neither the Board, nor the Circuit Clerk complied with the Order. Twenty-one days later, the plaintiffs sent a second demand to the Board and the Circuit Clerk seeking compliance with the Order and transfer of the money. When the Board and the Circuit Clerk failed to comply with the order, the plaintiffs filed a Motion to Show Cause and for Contempt.

¶ 7. The Board filed their Defenses and Response to Motion to Show Cause and for Contempt, as well as a Motion to Set Aside and/or to Clarify Order Transferring Plaintiffs’ Filing Fee to the Transferee Circuit Clerk of Jackson County, Mississippi. The Board raised, inter alia, the following issues: (1) they were not given notice or an opportunity to be heard regarding the Order Transferring Plaintiffs’ Filing Fees; (2) any and all filing fees collected were mandated by Order of the Circuit Court judges; (3) Hinds County processes many cases in which multiple filing fees were collected and an Order to transfer funds in this case would expose Hinds County to tremendous potential liability; (4) the Circuit Court had no jurisdiction over the parties as the case had been transferred to Jackson County; and (5) it is improper to transfer an entire filing fee after the filing of the case. The Board claimed there were over thirty entries and matters handled by the Circuit Clerk and the Order Transferring Plaintiffs’ Filing Fees did not provide any consideration for the work performed by the Clerk.

¶ 8. The Motion to Set Aside was denied. In its Order denying the Motion to Set Aside, the Circuit Court ordered the Circuit Clerk and the Board to refund filing fees in the amount of $53,250.00 to counsel for the plaintiffs by December 31, 2004.

¶ 9. On January 6, 2005, the Circuit Court issued an Order which lifted a stay and required the refund of the filing fees to counsel for Plaintiffs. The Order of January 6, 2005, provided, “the Circuit Clerk and the Hinds County Board of Supervisors shall refund to [Abnie’s attorney] the total sum of $53,250.00 on or before January 28, 2005. Failure to make said refund payment as ordered will amount to contempt of court and result in sanctions of $50.00 per day until said $53,250.00 is paid in full or the assessment of 8% interest on the amount to be refunded beginning January 29, 2005.”

¶ 10. The Board and the Circuit Clerk filed a Notice of Appeal from the Order Transferring Plaintiffs’ Filing Fees and the final Order Requiring the Refund of Filing Fees. The Board and the Circuit Clerk further filed a Motion to Stay Order Requiring Refund of Filing Fees, Contempt Ruling, and Sanctions pending the outcome of their appeal. This Motion to Stay was granted by the Circuit Court and was construed by the Hinds County Circuit Court as a request for interlocutory appeal, which was also granted. The Court then granted permission for this interlocutory appeal. See M.R.A.P. 5.

ISSUES

¶ 11. The Plaintiffs assert the Circuit Court Order Of October 27, 2000, was contrary to state law, specifically Miss. Code Ann. Section 25-7-1 and Section 25-7-13, and “the Clerk should not be able to obtain fees contrary to state law .... ” Plaintiffs further argue they were overcharged for the filing .of a single complaint. Additionally, they should not have been required to pay a second filing fee upon transfer of the action to Jackson County, stating in their brief, “the real issue at hand is that contrary to state law, Appel-lees were required to pay two filing fees .... ” Plaintiffs present the following issue for appeal: Whether they are entitled to a refund for the overpayment of filing fees.

¶ 12. The Board and the Circuit Clerk argue the Circuit Court’s Order requiring a refund of filing fees was issued in response to this Court’s 2003 En Banc Order, which prohibited the Fifth Circuit District’s clerks from charging multiple filing fees. The Board and the Circuit Clerk argue this Court’s 2003 Order should not apply to them, as the case sub judice was filed approximately two years before this Court issued the Order. Although the Board and the Circuit Clerk raised numerous issues in the lower court, swpta, they present the following as their sole issue for appeal: Whether or not equity requires the ruling of this Court in its 2003 Order to be applied prospectively.

STANDARD OF REVIEW

¶ 13. The matter sub judice is an interlocutory appeal from an Order Requiring the Refund of Filing Fees issued by a Hinds County Circuit Court judge. This appeal was brought pursuant to Mississippi Rule of Appellate Procedure 5(a). “A circuit judge sitting without a jury is accorded the same. deference with regard to his findings as a chancellor and his findings are safe on appeal where they are supported by substantial, credible and reasonable evidence.” City of Clinton v. Smith, 861 So.2d 323, 326 (Miss.2003) (citations omitted).

ANALYSIS

I. Whether Plaintiffs are entitled to a refund for the overpayment of filing fees

¶ 14. As succinctly stated by this Court’s Order of September 4, 2003, the Legislature established the statutory fees allowed to be charged by clerks, and “no more.” In the matter sub judice, the Circuit Clerk was not at liberty to assess and collect administrative costs and separate filing fees for each plaintiff, as it was contrary to state law, specifically Miss. Code Ann. Section 25-7-1 and Section 25-7-13. Plaintiffs were improperly and im-permissibly required to pay filing fees and administrative costs in excess of the statutorily authorized amount.

¶ 15. It is the duty of this Court to abide by the intent of the Legislature, and the Legislature has spoken to this issue in Miss.Code Ann. Sects. 25-7-1 and 25-7-13. This Court, in its 2003 Order, did not change or modify the existing law, which had long been established by the Legislature. The 2003 Order and today’s ruling are consistent in their application and enforcement of the right of the Legislature to establish fees for the circuit clerks of this state. Accordingly, the request of the Board to apply this Order prospectively is denied.

CONCLUSION

¶ 16. Accordingly, the plaintiffs are entitled to a refund of all filing fees and administrative costs in excess of the statutorily established amounts. We affirm the portion of the Circuit Court’s Order requiring a refund of the filing fees. This case is remanded to the Circuit Court for proceedings consistent with this opinion.

¶ 17. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., NOT PARTICIPATING.

      . The Seventh Circuit Court District is made up of Hinds County.

      . The Fifth Circuit Court District is made up of the following counties: Grenada, Carroll, Montgomery, Attala, Webster, Choctaw and Winston.

      .Miss.Code Ann. Sect. 25-7-13(1)(a) sets the filing fee at $75.00 for each complaint, petition and indictment.

      . As these proceedings were ongoing, the judges of the Seventh Circuit Court District issued an Order Rescinding the Seventh Circuit Court’s Order of October 27, 2000, Requiring Filing Fees of Each Plaintiff in a Multiple or Consolidated Complaint. The Order of July 28, 2004, provided that the October 27, 2000, Order should be rescinded due to this Court's September 4, -2003, Order.

      . The Order failed to reference the $14,200 administrative cost assessment.


author: CARLSON, Justice,

text:
    Yvonne ELLIS a/k/a Yvon Ellis v. STATE of Mississippi.
    No. 2005-KA-01460-SCT.
    Supreme Court of Mississippi.
    July 27, 2006.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General' by Billy L. Gore, attorney for appellee.
    Before COBB, P.J., CARLSON and DICKINSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. On April 5, 2005, Yvonne Ellis, an adult male, was indicted for the statutory rape of E. M. pursuant to Miss.Code Ann. § 97 — 3—65(l)(b) (Supp.2005). After a jury trial in the Circuit Court for the Second Judicial District of Carroll County, Ellis was convicted of this crime and sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections. After his motion for judgment notwithstanding the verdict, or, in the alternative, a new trial was denied by the trial court, Ellis timely appealed the judgment of conviction to this Court. The sole issue Ellis raises for consideration is whether the trial court abused its discretion by admitting the State’s DNA evidence, notwithstanding a perceived break in the chain of custody. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On October 12, 2003, Yvonne Ellis, then 37 years old, twice had consensual sexual intercourse with 13-year-old E.M. on the front steps of Jeff Chapel Church in Carroll County.

¶ 3. After he was indicted for statutory rape, Ellis’s trial commenced on May 11, 2005, in the Circuit Court for the Second Judicial District of Carroll County, Judge Clarence E. Morgan, III, presiding.

¶ 4. During the course of the two-day trial, the State called six witnesses. We briefly summarize here the testimony of these witnesses.

¶ 5. E.M. testified that she had been staying at her great grandmother’s house with her cousin, T. K. The girls received a telephone call after midnight, and they agreed to meet a group of four men outside the house. The girls met Yvonne Ellis, Timothy Grant, Undra Powell, and Cory Johnson, who were riding in a black Lexus. E.M. and T.K. got into the car with the men, and they traveled to Jeff Chapel Church in Carroll County. Upon arrival at the church, the car was parked behind the church. E.M. testified that she and Ellis walked around to the front of the church and had sex on the steps of the church, while T.K. and the other three men stayed at the back of the church. According to E. M., she and Ellis had sex without the use of a condom. E.M. likewise testified that after they had sex, Ellis walked to the back of the church and then Grant appeared. E.M. and Grant then had sex at the front of the church. This time a condom was used. When E.M. finished having sex with Grant, they walked to the back of the church and rejoined the group. The men then drove the two girls back to the house of E.M.’s great-grandmother, and left them there at the house. Shortly thereafter, T.K. informed E.M. that “somebody” had called and that E.M. should go outside and meet that person. When E.M. went outside, Ellis was waiting for her in the black Lexus. According to E. M., she and Ellis drove back to the church and had sex a second time. E.M. also claimed that Ellis paid her $40 (two $20 bills), and then drove her back to her great grandmother’s house. When E.M. arrived home, her family members took her to the University Hospital and Clinic (UHC) in Lexington.

¶ 6. Joanne Jones, the UHC nursing supervisor on duty that night, testified that she performed a rape kit examination on E.M. Evidence gathered that night at UHC included E. M.’s clothing, a sample of E. M.’s blood, dried semen secretions off of E. M.’s skin, vaginal swabs, and the condom that E.M. used while having sex with Grant. Jones gave the collected evidence to Carroll County Deputy Sheriff Michael Spellman.

¶ 7. Paige Bowlus, a forensic biologist at the Mississippi Crime Laboratory (MCL), was accepted as an expert witness in forensic serology. Bowlus performed tests on the evidence in the rape kit prepared by Jones at UHC. Bowlus testified that although she did not personally receive the rape kit, an MCL technician received the evidence and submitted it to Bowlus, who then tested the evidence and placed case identification bar codes on the exhibits. Additionally, Bowlus testified that the MCL received four tubes of blood, two each drawn from Yvonne Ellis and Timothy Grant. Bowlus stated that she did not test the blood, but instead, the MCL personnel packaged these tubes of blood and sent them straight to Reliagene Technologies in New Orleans for testing.

¶ 8. Although the State had the MCL’s Clydell Morgan available to testify that she was the person at the MCL who had packaged the tubes of blood and sent them to Reliagene, the State sought a joint stipulation, which was refused by defense counsel; however, the trial judge informed counsel that the chain of custody would be established if the State could show that Deputy Spellman delivered the tubes of blood to the MCL and that Reliagene received the tubes from the MCL. Therefore, the State did not call Morgan to testify. However, defense counsel offered a continuing objection to the four tubes of blood being entered as evidence, and the trial judge overruled the objection.

¶ 9. Deputy Spellman, who had arrested Ellis and Grant, indeed testified that he delivered E. M.’s rape kit and the four tubes of blood to the MCL. Pursuant to a court order, this blood had been taken at Tyler Memorial Hospital in Winona. Deputy Spellman testified that he had personally seen nurse Elizabeth Hedgepeth draw the blood from the arms of Ellis and Grant. However, Deputy Spellman also testified that, while he had seen the nurse label the tubes, he could not remember whether the nurse had labeled the tubes before, during, or after she had taken the blood. Deputy Spellman also could not recall whether the nurse had first drawn the blood from Ellis or Grant. Additionally, he could not-remember whether the four tubes had been packaged separately or together.

¶ 10. Huma Nasir, an employee of Re-liagene Technologies in New Orleans, was tendered and accepted by the trial court as an expert witness in forensic DNA analysis. Nasir testified Reliagene received the evidence (the rape kit and four tubes of blood) sent via FedEx from the MCL. While Nasir did not personally receive the package, a tracking number was put on the package by an evidence technician at Re-liagene when it was received. Nasir testified that the package was sealed and that everything appeared to be in the proper order when she received it. Nasir said that she personally conducted the tests comparing the rape kit evidence to the blood samples and found to a “reasonable degree of scientific certainty” that all of the specimens from E. M.’s rape kit, excluding the condom which was used while E.M. had sex with Grant, contained Ellis’s DNA. Nasir also testified that Reliagene used its own chain of custody form, and the form had been filled out correctly. Reliagene packaged the. samples and shipped them back to the MCL via UPS. Once received at the MCL, Deputy Spell-man signed to receive the evidence back from the MCL.

¶ 11. Over defense objection that there was a break in the chain of custody, the trial court admitted the four tubes of blood to be into evidence.

¶ 12. The State recalled Paige Bowlus in an effort to clear up a perceived misunderstanding about the bar codes used for identification at the MCL. Bowlus testified that the bar code on the sealed bag which contained the four tubes of blood matched the bar code on the submission form. The four tubes of blood had not been labeled individually, but instead, they had been labeled as one package for identification at the MCL.

¶ 13. The final witness for the State was Undra Powell, one of the-four men in the group when the sexual incidents occurred. Powell testified that he only saw E.M. go to the front of the church with Ellis, and then Grant, separately; however, Powell did not actually see anyone having sex.

¶ 14. After the State rested its case-in-chief, the defense called Deputy Spellman to testify about the $20 bills he had tested for fingerprints. Deputy Spellman, stated that Ellis’s fingerprints were not found on the money Ellis supposedly paid E.M. for sex. T. K., E. M.’s cousin, testified that she had not actually seen E.M. have sex with either Ellis or Grant that night because she had stayed with the group at the back of the church. Finally, Ellis testified in his own behalf. Ellis claimed that he never had sex with E.M. He said that E.M. had a bad “body odor” when she stripped down to her underwear on the church steps, so he declined to have sex with her. Ellis also denied that the second meeting for sex ever happened.- He claimed he gave E.M. and T.K. $20 each at the group meeting to stop them from arguing.

¶ 15. After the defense rested, and the instructions had been read to the jury, closing arguments were conducted, and during the defendant’s closing arguments, defense counsel suggested that the four tubes of blood could have been swapped because Deputy Spellman could not testify with certainty as to the labeling of the tubes. However, the jury unanimously found Ellis guilty of statutory rape, and the trial judge sentenced Ellis to -serve twenty years in the custody of the Mississippi Department of Corrections.

DISCUSSION

¶ 16. Yvonne Ellis has presented only one issue for us to consider. We restate this issue for clarity.

WHETHER THE TRIAL COURT ERRED IN ADMITTING CERTAIN EXHIBITS INTO EVIDENCE DUE TO A BREAK IN THE CHAIN OF CUSTODY.

¶ 17. “Our well-established standard of review for reviewing the trial court’s admissibility of evidence, including expert testimony, is abuse of discretion.” Jones v. State, 918 So.2d 1220, 1223 (Miss.2005) (citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003); McGowen v. State, 859 So.2d 320, 328 (Miss.2003); Haggerty v. Foster, 838 So.2d 948, 958 (Miss.2002)). “Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003). “Unless we can safely say that the trial court abused its judicial discretion in allowing or disallowing evidence so as to prejudice a party in a civil case, or the accused in a criminal case, we will affirm the trial court’s ruling.” Jones, 918 So.2d at 1223 (citing McGowen, 859 So.2d at 328).

¶ 18. Ellis argues that the trial court erred by admitting the four tubes of blood taken from Ellis and Grant as DNA evidence. Ellis contends that the chain of custody was not properly established. He claims that the nurse who drew the blood may have mislabeled the tubes by inadvertently swapping the names of Ellis and Grant on the tubes. Ellis argues that for the evidence to have been admissible, the nurse, Elizabeth Hedgepeth, should have been required to testify at trial as to how she labeled the tubes and packaged them for shipment to the MCL. Ellis also argues that Clydell Morgan should have been required to testify as to how she received the tubes at the MCL and packaged them for shipment to Reliagene Technologies in New Orleans. Specifically, Ellis claims that without the testimony of Hedgepeth and Morgan on these critical issues, the chain of custody is incomplete or broken.

¶ 19. We turn to the record to consider the evidence on the issue of the chain of custody as to certain exhibits. Deputy Spellman witnessed the blood being drawn from Ellis and Grant by the nurse;' however, he could not recall at trial as to when during the process the nurse actually labeled the tubes with the men’s names. Deputy Spellman only recalled seeing the nurse put labels on the tubes. He also did not recall whether the nurse packaged the tubes together or separately to be sent to the MCL. Deputy Spellman then took the tubes to the MCL. Reliagene Technologies in New Orleans received the tubes from the MCL via FedEx. Finally, Reliagene sent the tubes via UPS back to the MCL, where they were retrieved by Deputy Spellman.

¶ 20. There is no lack of ease law in Mississippi for questions of an alleged break in a chain of custody in criminal trials. Reversing a conviction on such a claim and disturbing the judgment below requires a finding of an abuse of discretion by the trial judge. “The admissibility of evidence rests within the discretion of the trial court.” Spann v. State, 771 So.2d 883, 893 (Miss.2000) (relying on Sturdivant v. State, 745 So.2d 240, 243 (Miss.1999) (citing Baine v. State, 606 So.2d 1076, 1078 (Miss.1992); Wade v. State, 583 So.2d 965, 967 (Miss.1991))). The defendant in Spann contended that the missing link in the chain of custody was sufficient to warrant this Court’s holding that the trial court abused its discretion in admitting the evidence in question. The defendant argued that the trial court erred in admitting the evidence when the evidence custodian of the police department did not testify as to his receipt and logging in of the evidence. However, this Court disagreed and instead agreed with the trial court that the State is not required to offer testimony from every person who handled the evidence. Id. at 893-94.

The trial judge appropriately relied upon this Court’s decision in Ormond v. State, 599 So.2d 951 (Miss.1992), in ruling that absent Spann’s contention of tampering or alteration of the projectile, the State had satisfied the rule of evidence governing the requirement of authentication or identification that the “condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Miss. R. Evid. 901(a). In Ormond, this Court explained:
* * *
This case presents no evidence of alteration or substitution or tampering with the [evidence] at any time. Under the abuse-of-discretion standard, although the chain may not have been thoroughly demonstrated, in the absence of any contention of alteration or tampering, the trial court did not abuse its discretion in admitting the [evidence].
Ormond, 599 So.2d at 959. The test of whether there has been a break in the chain of custody of evidence is whether there is an indication or reasonable inference of probable tampering with the evidence or substitution of the evidence. Nalls v. State, 651 So.2d 1074, 1077 (Miss.1995) (citing Gibson v. State, 503 So.2d 230, 234 (Miss.1987); Nix v. State, 276 So.2d 652, 653 (Miss.1973)).

Spann v. State, 771 So.2d at 894.

¶21. The proponent of the evidence must show no reasonable inference of material tampering with, or substitution of, the evidence; however, Mississippi law has never required a proponent of evidence to produce every handler of the evidence. Ormond, 599 So.2d at 959 (relying on Butler v. State; 592 So.2d 983, 985 (Miss.1991)).

¶ 22. Ellis argues that there are two breaks in the chain of custody. He asserts that because Deputy Spellman could not state with certainty when he saw nurse Hedgepeth label the tubes or how she packaged them, there is a reasonable inference of substitution because the nurse could have mislabeled the tubes by inadvertently swapping the names of Ellis and Grant on the tubes. However, this Court has stated:

In Gibson v. State, 503 So.2d 230, 234 (Miss.1987), this Court opined:
[T]he test for the continuous possession [ie., “chain of custody”] of evidence is whether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.
See Barnette v. State, 478 So.2d 800, 804 (Miss.1985); Morris v. State, 436 So.2d 1381, 1388 (Miss.1983); see also Lambert v. State, 462 So.2d 308, 312 (Miss.1984); Grady v. State, 274 So.2d 141, 143 (Miss.1978[1973]). “In such matters, the presumption of regularity supports the official acts of public officers,” and the burden to produce evidence of a broken chain of custody (ie., tampering) is on the defendant. Nix v. State, 276 So.2d 652, 653 (Miss.1973), quoted in Barnette, 478 So.2d at 804.

Hemphill v. State, 566 So.2d 207, 208 (Miss.1990).

¶ 23. While it could be argued that the nurse’s actions do not enjoy the presumption of regularity because she is not a public official, Ellis still has the burden of proving that the tubes were substituted. He simply offers no proof that substitution occurred. A mere suggestion that substitution could possibly have occurred does not meet the burden of showing probable substitution.

¶ 24. Additionally, the case law is clear that the State did not have to call every witness who handled the blood to establish the chain of custody. The jury could reasonably understand who had possession of the blood at all times. No witness who did testify gave any reason for the jury to believe that anything irregular occurred with this evidence. We find that the trial court did not abuse its discretion in admitting the blood evidence. Thus, there is no merit to this assignment of error.

CONCLUSION

¶ 25. For the reasons stated, the judgment of the Circuit Court for the Second Judicial District of Carroll County is affirmed.

¶ 26. CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY (20) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . Since the female victim was only 13 years old at the time, her name will not be revealed.

      . E.M. turned fourteen the next day. However, pursuant to the provisions of Miss.Code Ann. §§ 97-3-65(1)(a), — 65(1)(b) (Supp.2005), when a person the age of Ellis has consensual sexual intercourse with a child (whether that child be between the ages of fourteen and sixteen, or under the age of fourteen), that person is guilty of statutory rape, and neither the child’s consent nor lack of chastity shall be a defense to a charge of statutory rape. See Miss.Code Ann. § 97-3-65(2) (Supp. 2005).

      .Likewise, the name of E. M.’s cousin will not be revealed.

      . Timothy Grant pleaded guilty to the statutory rape of E. M.

      . Including the sexual act committed with Grant, this was the third time that 13-year-old E.M. had sex that night.