author: CARLSON, Presiding Justice, WALLER, Chief Justice,

text:
    David Jackson WILLIAMS v. STATE of Mississippi.
    No. 2008-CT-00695-SCT.
    Supreme Court of Mississippi.
    Nov. 10, 2010.
    Rehearing Denied Feb. 24, 2011.
    David G. Hill, Oxford, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court:

¶ 1. David Jackson Williams was convicted of murder in the Lafayette County Circuit Court and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Williams appealed, and we assigned this case to the Court of Appeals. After the Court of Appeals affirmed the trial-court judgment, we granted Williams’s petition for writ of cer-tiorari. Finding error in the trial court’s refusal to give an assisted-suicide instruction, we reverse the judgment of the Court of Appeals and the Lafayette County Circuit Court’s judgment of conviction and sentence and remand this case to the trial court for a new trial.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The following history is taken from the facts and trial-court proceedings as set out in the opinion of the Court of Appeals. Williams v. State, 53 So.3d 761 (Miss.Ct. App.2009), reh’g denied Apr. 20, 2010. This appeal centers on the untimely death of Demetria Bracey, who was a student at the University of Mississippi in Oxford. The events that led to Bracey’s death were set into motion when Bracey met Williams on the internet during January 2005. Shortly after they met, Bracey and Williams formed a romantic relationship.

¶ 3. Bracey and Williams maintained their relationship throughout the early months of 2005. However, during the summer of 2005, Bracey left the United States for an opportunity to study abroad in Paris, France. Bracey and Williams broke up before she left and remained separated for the summer. Sometime after Bracey returned to Oxford, she and Williams resumed their romantic relationship. The events central to this appeal occurred during the second week of November 2005.

¶ 4. At the beginning of the week, Bra-cey uncharacteristically failed to report for band practice and failed to report for her duties as a dormitory resident advisor. Later in the week, one of Bracey’s close friends, Jessica Smith, became concerned for Bracey. Smith called Williams on his cellular telephone and asked him whether he knew where she could find Bracey. Williams reported that Bracey’s father was dying and that Bracey had gone home to Jackson so that she could be with him. Smith was not able to reach Bracey on her cellular telephone, so she asked Williams for the telephone number of Bracey’s father. However, Williams would not give Jessica a telephone number. Williams told Smith that Bracey’s father would not want Williams to give out his telephone number.

¶ 5. Undeterred, Smith asked Williams whether he would set up a three-way conference call so she could at least speak to Bracey. Shortly afterward, Williams arranged a conference call, and Smith was able to talk to Bracey for a short period of time. According to Smith, Bracey had sounded as though she had been crying. Smith attributed Bracey’s emotional state to her father’s illness. However, Bracey was not at her father’s house. She was not even in Jackson. Instead, Bracey was with Williams at his apartment in Oxford. She had been with Williams in his apartment since Sunday, November 6.

¶6. Sometime between late Thursday night, November 10, and early Friday morning, November 11, Bracey died in Williams’s apartment after a kitchen knife penetrated her chest and punctured the right ventricle of her heart. Bracey and Williams were alone in his apartment at that time. During an interview with Oxford police officers, Williams claimed that Bracey had killed herself pursuant to a mutual suicide pact.

¶ 7. According to Williams, sometime between Thursday night and Friday morning, he and Bracey both went into one of his closets. During its case-in-chief, the prosecution introduced into evidence a transcript of Williams’s interview with the police. In that interview, Williams claimed that he and Bracey each had consumed substantial amounts of alcohol and that they each had swallowed ten Klonopin tablets. Williams stated that Bracey had then stabbed herself with one of his kitchen knives. Williams stated that he was supposed to stab himself at the same time. According to Williams, he tried to stab himself, but his knife did not go in far enough, and he lost consciousness because of the pain, as well as the alcohol and prescription drug he had consumed.

¶8. Williams claimed that he regained consciousness a couple of hours later and discovered that Bracey was dead. Williams told authorities that he removed the knife from Bracey’s chest and threw it across the room. Williams reported that he then attempted to kill himself again, but could not do so.

¶ 9. Williams spent the next few days isolated in his apartment drinking beer, watching television, and playing video games. According to Williams, he drank “a lot” during that time. Williams said he had hoped the alcohol would help him find the courage to kill himself. On Saturday, Williams ordered pizza, and around the same time, he received a notice that apartment inspectors would be visiting his apartment. Williams pushed Bracey’s legs into his closet and covered her body with clothes. He slept in another closet so he would not easily be discovered if an inspector entered his apartment.

¶ 10. On the following Tuesday, November 15, 2005, Williams decided to go to his parents’ house in Olive Branch. Williams reportedly asked his parents what he should do. His parents consulted an attorney and subsequently contacted authorities and informed them that they should examine Williams’s apartment. Williams’s parents had him admitted to the Baptist-DeSoto Hospital in Southaven, Mississippi.

¶ 11. On November 15, Lieutenant Wes Hatcher of the Oxford Police Department was dispatched to Williams’s apartment. Lieutenant Hatcher went inside Williams’s apartment and discovered Bracey’s body. Lieutenant Hatcher secured Williams’s apartment so it could be examined by crime-scene investigators. Officers from the Oxford Police Department met with Williams the next day.

¶ 12. On November 16, 2005, Williams was released from the hospital. Two members of the Oxford Police Department drove Williams to Oxford. Williams and his attoi'ney met with Investigator Jimmy Williams of the Oxford Police Department and Master Sergeant John Marsh of the Mississippi Highway Patrol’s criminal investigation bureau. Williams agreed to be interviewed with his attorney present.

¶ 13. During the interview, Williams claimed that Bracey had killed herself. Williams stated that he and Bracey had made a suicide pact and that they had started discussing suicide during the summer.

¶ 14. Regarding the night that Bracey died, Williams, in his interview with law enforcement officials, presented the following version of events:

We had kind of talked about committing suicide together and stuff like that and we decided we were going to do it last week and she came over, it was Sunday. We just hung out together, didn’t go to class, she didn’t work, um and we just hung out for a couple of days and decided that we were going to do it that night and she, we both drank a lot and took some pills but it wouldn’t help the pain, you know. And we decided to do it in the closet so it would take longer for people to find us if somebody showed up looking for us and we got knives and went in there and we decided to do it at the same time and mine didn’t go as far in.

Williams also said:

I woke up later and saw that [Bracey] was already dead. And I got the knife out of her and checked if she was alive and she wasn’t. I stabbed myself again with that knife and I just couldn’t do it hard enough to make it work. The next few days I was drinking and trying to do it at every night but I couldn’t do it.

¶ 15. Williams was indicted on March 2, 2006, by a Lafayette County grand jury on the sole charge of murder. He pleaded not guilty, and on September 24, 2007, he went to trial. The prosecution called nine witnesses. Three of those witnesses testified regarding Bracey’s personality, Williams’s personality, and the relationship between Bracey and Williams.

¶ 16. Smith testified regarding Bracey’s personality, Bracey’s relationship with Williams, and the events that had transpired during early November 2005. Bra-cey’s mother, Glenda Hill, also testified regarding Bracey’s personality and relationship with Williams. Enjoli Canan-kamp testified that, during the spring and early summer of 2005, she and Williams had dated “off and on.” Canankamp also testified that she had spoken with Williams about Bracey’s death. According to Can-ankamp, Williams had said that he and Bracey had a suicide pact.

¶ 17. The prosecution also called law enforcement witnesses who had participated in the investigation. Lieutenant Hatch-er testified as to his participation in the investigation, as did Investigator Williams and Agent Marsh, who by this time had left the Mississippi Highway Patrol’s criminal investigation bureau and had joined the Federal Bureau of Investigation. Dy-wana Broughton, an employee of the Mississippi Highway Patrol’s criminal investigation bureau’s crime-scene unit, testified that she had found twenty-three separate blood stains throughout Williams’s apartment.

¶ 18. Dr. Steven Hayne, a forensic pathologist, also testified for the prosecution. Dr. Hayne testified that on November 16, 2005, some five days after Bracey’s death, he performed an autopsy on Bracey. Dr. Hayne testified that, at the time he performed his autopsy, it was his belief that Bracey had been dead for approximately three days. According to Dr. Hayne, the cause of Bracey’s death was the stab wound to her heart. Dr. Hayne testified that the manner of her death was homicide. Dr. Hayne likewise testified regarding why he did not believe that Bracey had committed suicide.

¶ 19. Dr. Hayne explained that he had found bruises on the sternocleidomastoid muscles in Bracey’s neck, soft-tissue hemorrhaging in her neck, and bruising in the area of Bracey’s larynx. Dr. Hayne opined that the injuries to Bracey’s neck were consistent with strangulation that was not self-inflicted, but was sustained while she was alive. Dr. Hayne also found an abrasion on Bracey’s right hand that he considered to be consistent with defensive posturing. Additionally, Dr. Hayne testified that “hesitation marks” sometimes are present when a person has committed suicide. “Hesitation marks” appear when one begins to commit suicide with a sharp object, but then hesitates to actually make the mortal wound and instead slightly injures himself. Dr. Hayne said he had found no hesitation marks on Bracey’s body. Finally, Dr. Hayne explained that it would take a “considerable” or “significant” amount of force to commit suicide by stabbing through the cartilaginous portion of the rib cage.

¶ 20. On cross-examination, Dr. Hayne testified that “hesitation marks” do not always appear when someone commits suicide with a sharp object. Additionally, he admitted that Bracey could have sustained the abrasion to her right hand in a number of ways other than defensive posturing. However, he opined that Bracey had sustained the abrasion shortly before her death.

¶ 21. The prosecution’s final witness was Dr. Earnest Lykissi, an expert in the fields of clinical and forensic toxicology. Dr. Lykissi testified that, contrary to Williams’s claim that Bracey had taken approximately ten Klonopin tablets before she died, no drugs were detected in Bra-cey’s system. Dr. Lykissi testified that Bracey had a substantial amount of alcohol in her system. To be precise, Dr. Lykissi testified that Bracey’s blood-alcohol content was .6 percent. Dr. Lykissi explained that, when a person has a blood-alcohol content of .2, he or she is “commode hugging, floor crawling drunk.” He further explained that someone with a blood-alcohol content of .3 is likely to be unconscious, and a person with a blood-alcohol content of .4 is “ready for the undertaker.” According to Dr. Lykissi, some of the alcohol in Bracey’s system could have been attributed to decomposition, but only as much as .14 percent. Dr. Lykissi said he “seriously” doubted that anyone would be able to function with a blood-alcohol content of .3 or higher.

¶ 22. After the prosecution rested its case-in-chief, Williams called Dr. R.W. Scales. Dr. Scales testified that he had a Ph.D. in immunology and that he was the director and owner of Scales Biological Laboratory, a DNA testing facility in Brandon, Mississippi. According to Dr. Scales, almost all of the blood stains in Williams’s apartment were Williams’s blood. However, Bracey’s blood was found in the closet where she died, and in the left portion of Williams’s kitchen sink.

¶ 23. Williams called Father Ollie Rencher as a witness. Father Rencher was the Assistant Rector at St. Peter’s Episcopal Church in Oxford, which Bracey had attended. He also was the Episcopal chaplain to the university. Father Rencher testified that he had known Bracey and that he had counseled her in religious matters. When Father Rencher first discovered that Bracey had died, he voluntarily had contacted the Oxford Police Department and had provided a statement in which he had disclosed information about Bracey. In his statement, Father Rencher indicated that, from his personal knowledge about Bracey, he thought that she may have committed suicide. At trial, however, Father Rencher declined to testify regarding his statement, based on the priest-penitent privilege.

¶24. Williams’s final witness was Dr. Arthur Copeland, a forensic pathologist with a medical degree and a Ph.D. in molecular biology. Dr. Copeland testified that he had reviewed Dr. Hayne’s autopsy report and other records related to Bra-cey’s death. Dr. Copeland disagreed with Dr. Hayne’s conclusion that Bracey’s body had demonstrated signs of manual strangulation. Dr. Copeland noted that Dr. Hayne did not perform a “fancy neck dissection” by which one dissects the tissues around the neck and takes photographs for a more detailed examination. Dr. Copeland testified that what Dr. Hayne concluded was hemorrhaging in the neck tissues could have simply been changes that occur with decomposition. Dr. Copeland further noted that manual strangulation produces “petechia,” which he described as “small minute pinpoint hemorrhages” that appear “[l]ike a little tiny dot.” Dr. Copeland went on to testify that there were no other indications of manual strangulation, such as broken fingernails or “offensive” injuries to Williams.

¶25. Dr. Copeland also criticized Dr. Hayne for not presenting his findings to another pathologist before he concluded that the manner of Bracey’s death was homicide. Additionally, Dr. Copeland stated that Dr. Hayne should have requested additional investigation into whether Bra-cey had a history of mental or emotional treatment and that he should have contacted a forensic psychologist or a forensic psychiatrist to discuss his findings.

¶26. Dr. Copeland explained that a lack of hesitation marks does not necessarily rule out the possibility that someone committed suicide. In contrast to Dr. Hayne’s testimony, Dr. Copeland testified that it is “not that difficult” to penetrate the cartilaginous portion of the rib cage. Dr. Copeland testified that he could not render a conclusion as to the manner of Bracey’s death, but his observations were “consistent with suicide.” Dr. Copeland went on to testify that Dr. Hayne “immediately jumped the gun [and] called this a homicide from the get[-]go.” On cross-examination, Dr. Copeland agreed that it is not typical for someone to commit suicide by stabbing herself with a knife. Dr. Copeland also testified that “[s]uicide among minority groups is rare.”

¶ 27. After Dr. Copeland testified, Williams rested. Williams did not testify during the trial. During the conference on jury instructions, Williams requested an assisted-suicide instruction. The circuit court refused the instruction on the basis that assisted suicide is not a lesser-inelud-ed offense of murder. As previously mentioned, the jury found Williams guilty of murder. Williams, 53 So.3d at 762-67, ¶¶ 3-28.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 28. Before the Court of Appeals, Williams asserted that the trial court had erred when it: (1) refused his request for an assisted-suicide instruction; (2) allowed a priest to claim the priest-penitent privilege regarding conversations that the priest had had with the victim; (3) allowed Dr. Hayne to testify as an expert in the field of forensic pathology; and (4) denied his motion to dismiss based on the allegation that he had been denied a right to a speedy trial. Williams additionally claimed ineffective assistance of counsel. The Court of Appeals thoroughly addressed all issues and found them to be without merit, affirming the trial court’s judgment of conviction and life sentence for murder. Williams, 53 So.3d at 783, ¶ 82.

DISCUSSION

¶ 29. On July 22, 2010, we granted Williams’s petition for writ of certiorari. Williams v. State, 39 So.3d 5 (Miss.2010). Because this Court finds reversible error due to the trial court’s failure to give an assisted-suicide instruction, we need not discuss the remaining issues Williams raised before the Court of Appeals. M.R.A.P. 17(h); Dora v. State, 986 So.2d 917, 921 n. 8 (Miss.2008).

¶ 30. A Lafayette County grand jury charged Williams with the murder of Bracey under Mississippi Code Section 97-3 — 19(l)(a) (Rev.2006). The central issue before this Court today is whether the trial court erred by not granting Williams’s request for a lesser-nonincluded instruction on assisted suicide. Mississippi Code Section 97-3-49 states:

A person who wilfully, or in any manner, advises, encourages, abets, or assists another person to take, or in taking, the latter’s life, or in attempting to take the latter’s life, is guilty of [a] felony and, on conviction, shall be punished by imprisonment in the penitentiary not exceeding ten years, or by fíne not exceeding one thousand dollars, and imprisonment in the county jail not exceeding one year.

Miss.Code Ann. § 97-3-49 (Rev.2006).

¶31. Williams, through counsel, proffered jury instruction D-3, which stated that if the jury found Williams not guilty of murder, the jury should proceed to deliberate on whether the State had proven “the elements of the lesser crime of assisting suicide.” Instruction D-3 further stated in pertinent part:

If you find from the evidence in this case beyond a reasonable doubt:

1. On or about November 13, 200[5][,] in Lafayette County, Mississippi;
2. That DEMETRIA BRACEY was a human being; and
3. That DAVID JACKSON WILLIAMS did willfully or in any manner, advise, encourage, abet or assist DEMETRIA BRACEY in taking her life;
then you shall find the defendant guilty of assisting suicide.
If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find DAVID JACKSON WILLIAMS not guilty of assisting suicide.

Williams, 53 So.3d at 767, ¶ 30. The trial court refused Williams’s assisted-suicide instruction, reasoning that Williams was allowed an instruction on his theory of the case only if that theory involved a lesser-included offense.

¶ 32. However, this Court has held that a defendant is entitled to an instruction on a lesser-nonincluded offense (also known as a lesser offense) under particular circumstances. Brooks v. State, 18 So.3d 833, 839-40 (¶ 27) (Miss.2009) (citing Moore v. State, 799 So.2d 89, 91 (¶ 7) (Miss.2007)). “If a lesser offense, as opposed to a lesser-included offense, arises from the same operative facts and has an evidentiary basis, we have held the defendant is entitled to an instruction for the lesser charge the same as if it were a lesser-included charge.” Moore, 799 So.2d at 91 (¶ 7) (citing Griffin v. State, 533 So.2d 444, 447-48 (Miss.1988)).

¶ 33. Moreover, this Court has articulated the framework by which a trial court should determine whether to give an instruction for a lesser-included offense (or lesser-nonincluded offense). Boyd v. State, 557 So.2d 1178, 1181 (Miss.1990) (citing Griffin v. State, 533 So.2d at 447). Specifically, “[i]n deciding whether lesser included instructions are to be given, trial courts must be mindful of the disparity in maximum punishments. Generally, where the disparity is great this Court has required lesser included instructions to be given.” Id. If disparity in the punishments does exist, the trial judge still cannot give the instructions “on the basis of pure speculation.” Id. (citing Mease v. State, 539 So.2d 1324, 1329-30 (Miss. 1989)). There must exist “some evidence regarding the lesser included offense.” Id.

¶ 34. In discussing the lens through which a trial court should view evidence as a basis for the giving of instructions on lesser-included offenses (and lesser-nonincluded offenses), this Court has stated:

[An] instruction should be granted unless the trial judge — and ultimately this Court — can say, taking all the evidence in the light most favorable to the accused and considering all reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).

Mease, 539 So.2d at 1330 (quoting Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)). Accordingly, we initially are to ascertain whether “some” evidence existed to support the instruction requested. Boyd, 557 So.2d at 1181 (citing Mease, 539 So.2d at 1330). If this Court is able to identify some evidence in support of the instruction, this Court is not called upon to weigh this evidence with regard to the jury’s verdict. Williams, 53 So.3d at 783-84, ¶ 86. Rather, when viewing this evidence, this Court must find that an evidentiary basis existed for the instruction unless “taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences that may be drawn from the evidence in favor of the accused, that no hypothetical jury could find the fact as the accused suggests.” Anderson v. State, 571 So.2d 961, 964 (Miss.1990) (citations omitted).

¶ 35. Pursuant to Mississippi Code Section 97-3-49, Williams requested a lesser-nonincluded instruction on assisted suicide and not a lesser-included offense. The disparity of maximum punishments between the charged offense and the lesser-nonincluded offense is obvious: the punishment for murder is life imprisonment, and the maximum punishment for assisted suicide is ten years in the state penitentiary. Miss.Code Ann. §§ 97-3~19(l)(a), 97-3-49 (Rev.2006). Because the record is strewn with evidence of the interactions between Williams and Bracey before her death, the question this Court must answer is whether any of this evidence, when viewed and considered in the light most favorable to Williams, supports a jury instruction that Williams “in any manner, advise[d], encourage[d], abet[ted], or assisted]” Bracey to commit suicide. Miss.Code Ann. § 97-3-49 (Rev.2006).

¶ 36. Evidence in the record relevant to the instruction on assisted suicide includes (1) conflicting expert testimony as to whether Bracey committed suicide; (2) evidence that Bracey and Williams were depressed individuals involved in a romantic relationship and had entered a suicide pact; (3) evidence that Williams had assisted Bracey’s plans by helping her liquidate her bank account; (4) evidence that Williams had assisted Bracey by purchasing beer to facilitate the enactment of their suicide pact; (5) evidence that Bracey and Williams had been at Williams’s apartment in the days before the event, trying to remain undiscovered; (6) evidence that Williams had facilitated the enactment of the suicide pact by providing kitchen knives; and (7) evidence by way of Williams’s statement, which was before the jury, that Bracey had stabbed herself. For the sake of today’s discussion, we have combined our review of this evidence into three subheadings.

1. Expert Testimony

¶ 37. For the prosecution, Dr. Hayne performed an autopsy on Bracey five days after her death. Dr. Hayne testified at trial that the manner of her death was homicide, not suicide, because of “(1) the angle and depth of the fatal wound, (2) the presence of injuries to Demetria’s neck, (3) the absence of ‘hesitation marks,’ and (4) the abrasion on the back of Demetria’s hand.” Williams, 53 So.3d at 788, ¶ 105 (Roberts, J., dissenting). As the Court of Appeals’ dissent correctly posits, however, Dr. Copeland contradicted Dr. Hayne’s findings on all points. Id. at 788-89, ¶¶ 106-111. Dr. Copeland specifically testified that his observations were “consistent with suicide.”

¶ 38. Dr. Lykissi testified as well for the prosecution, opining that Bracey had not taken Klonopin, contrary to Williams’s statements, and that Bracey’s blood-alcohol content was .6 percent. He said he doubted anyone would be able to function with a blood-alcohol content of .3 or higher. Importantly, however, “there was no testimony from Dr. Hayne, Dr. Earnest Lykissi, or Dr. Copeland that Bracey would have been too intoxicated to stab herself.” Id. at 787, ¶ 103. Accordingly, in viewing the evidence in the light most favorable to Williams, sufficient evidence exists in the record to support suicide as a possible cause of death.

2. Suicide Pact

¶ 39. At trial, evidence of a suicide pact between Bracey and Williams became a recurring theme. On November 16, 2005, Investigator Williams of the Oxford Police Department and Sergeant Marsh of the Mississippi Highway Patrol’s criminal investigation bureau interviewed Williams. Sgt. Marsh and Investigator Williams testified that (defendant) Williams had stated in this interview that he (Williams) and Bracey had “a suicide pact where they decided they were going to commit suicide.” Moreover, Canankamp testified that Williams had related to her that Bra-cey and Williams had entered a suicide pact in which “he [Williams] was going to do himself and she [Bracey] was going to do herself.”

¶ 40. Also in that interview and of importance to this case, Williams presented his version of events from the night of Bracey’s death:

We had kind of talked about committing suicide together and stuff like that and we decided we were going to do it last week and she came over, it was Sunday. We just hung out together, didn’t go to class, she didn’t work, um and we just hung out for a couple of days and decided that we were going to do it that night and she, we both drank a lot and took some pills but it wouldn’t help the pain, you know. And we decided to do it in the closet so it would take longer for people to find us if somebody showed up looking for us and we got knives and went in there and we decided to do it at the same time and mine didn’t go as far in.

(Emphasis added). The Court of Appeals’ majority opinion found none of Williams’s testimony sufficient to warrant a jury instruction on assisted suicide. Specifically, the Court of Appeals reasoned that Williams’s version of events likely was scripted through interactions with his attorney, and that these statements indicated only that Bracey and Williams had discussed suicide. Williams, 53 So.3d at 769, ¶ 37.

3. Other Evidence Relevant to the Suicide Pact

¶ 41. In the same interview with authorities, other evidence arose when Williams’s then-attorney involved himself in the interview process and began questioning Williams:

[Williams’s Attorney]: Okay. Uh, the day, the Thursday that all of this happened, Thursday leading into Friday, tell them about going to the bank. Williams: She wanted to go to the bank and get her money out and put it in her purse so that her mom could get it. She said she wasn’t sure that she could get access to the account. So we went by the bank and took out all of her money out. I don’t know exactly how much it was.
[Williams’s Attorney]: It was an ATM?
Williams: Yes, it was an ATM.
[Williams’s Attorney]: And which bank was that?
Williams: Trustmark on West Jackson.
[Williams’s Attorney]: That was Friday?
Williams: Yes, that was Friday.
[Williams’s Attorney]: And who put the card in?
Williams: I did that. She told me the pin number and I punched it in. She searched on the [I]nternet to see how much to get because she didn’t know what her balance was so she got pretty much all of it, I think. She told me how much it was, I don’t remember.
[Williams’s Attorney]: Okay. Who wound up with the money?
Williams: She did. She just put it in her purse somewhere, in like a little coin purse thing. She put it in there.
[Williams’s Attorney]: Was the money still there when you left?
Williams: It should be, yeah.
[Williams’s Attorney]: Okay. Now, tell them about the phone call that you received from Jessica Smith.
Williams: Jessica had been trying to call um, Demetria on her cell phone and she had turned it off because she didn’t want anybody to know where she was and she called me and I thought I should answer and do something. Because she said she was worried about where she is, that she had been missing work and not going to band and all that so, I decided to tell her that she had gone down to her dad’s house and I said that her dad didn’t want her number given out so I did the three way calling. I told her to turn her cell phone on real quick and she turned it on. I did a three way call to Demetria’s cell phone and she answered and she said that she was down at her dad’s place and that her dad wasn’t doing too good.
[Williams’s Attorney]: Okay. When was this?
Williams: I think it was um, Thursday or Wednesday.
[Williams’s Attorney]: Wednesday or Thursday?
Williams: Yeah.
Detective Williams: You said, let me verify this. You stated that Demetria wanted to take her money out of her account to make sure that her mother got the money is [sic] she went through with the suicide.
Williams: Right?
Detective Williams: And actually killed herself and said her mother would get the money and cut through all the red tape from having to go through the banking system to get the money. Williams: Right. I don’t know if she could get access to it through the bank, the account. I think it was tied through her school account somehow. I don’t know if she could get access to it. Detective Williams: But you are the one that took the money out?
Williams: Right. Basically it was her idea. She wanted to do it.

¶ 42. When considering this evidence, the Court of Appeals’ majority opinion found no evidence that Williams had made an “overt act” that “caused or helped her [Bracey] to commit the physical act of taking her own life.” Id. at 772, ¶42. More particularly, the Court of Appeals opined that driving Bracey to the bank, helping her with the ATM machine, and answering a call to lie as to Bracey’s location did not rise to the level of “actions calculated to effectuate the death of another” to satisfy the language of the assisted-suicide statute, because these acts did not lead to Bracey’s death. Id. at 771, ¶¶ 39-40. Further, the Court of Appeals reasoned that Bracey’s death at Williams’s apartment, where the two lovers had been hiding out and binge-drinking prior to Bra-cey’s death, failed to indicate that Williams had encouraged or assisted Bracey to commit suicide. Id. at 772-73, ¶ 43.

¶ 43. We respectfully find that in reaching the conclusion that no evidence existed to warrant a jury instruction on assisted suicide, the Court of Appeals applied the facts of this case in too narrow a manner to the broad language of the assisted-suicide statute. With regard to each piece of evidence, the Court of Appeals reasoned that Williams had failed to provide evidence of assistance of suicide, specifically “action on the part of the assistor that leads directly to the physical act of terminating [Bracey’s] life.” Id. at 768, ¶ 35.

¶ 44. In so doing, the Court of Appeals viewed each piece of evidence independently from the recurring evidence relating to the suicide pact and not in the light most favorable to Williams. Certainly, when viewed in isolation, taking someone to the ATM does not encourage suicide, nor does purchasing beer or telling lies. Neither the language of the assisted-suicide statute nor the evidentiary standard for a lesser-nonincluded offense, however, contemplates such a narrow application of the evidence to this case:

A person who wilfully, or in any manner, advises, encourages, abets, or assists another person to take, or in taking, the latter’s life, or in attempting to take the latter’s life, is guilty of felony and, on conviction, shall be punished by imprisonment in the penitentiary not exceeding ten years, or by fine not exceeding one thousand dollars, and imprisonment in the county jail not exceeding one year.

Miss.Code Ann. § 97-3-MR (Rev.2006) (emphasis added). A person is guilty of assisted suicide if “in any manner” he or she “advises, encourages, abets, or assists another person to take” his or her life. Id. Moreover, the evidentiary standard for a lesser-included offense requires this Court to make “all reasonable favorable inferences” in favor of Williams. Anderson, 571 So.2d at 964.

¶ 45. In viewing the totality of the evidence in the light most favorable to Williams, we do find that Williams’s statements to law enforcement, which were offered into evidence — combined with the other evidence in the record concerning the interactions between Williams and Bracey — indicate that a hypothetical reasonable juror may have believed Williams’s version of events.

¶ 46. As Judge Roberts articulated in his dissent, when viewed in the light most favorable to Williams, the suicide pact, considered in conjunction with the other evidence, could support a conclusion that Williams did encourage and/or assist Bra-cey in committing suicide. For purposes of this opinion, we adopt his findings on this issue:

The position advocated by the majority is based on the conclusion that no evidence supports the concept that Williams advised, encouraged, abetted, or assisted Demetria in committing suicide. Respectfully, the majority’s position ignores the substantial evidence that Williams and Demetria had a suicide pact. By agreeing to commit suicide together, each member of the pact was encouraged to commit suicide because they no longer had to face the possibility of committing suicide alone. Williams and Demetria were lovers. The suicide pact could easily be interpreted as an agreement between them that “if you are going to kill yourself, I do not want to continue to live without you, so I will likewise kill myself.” Williams’s statement indicated that he had attempted to commit suicide, but could not muster the courage to do so. A photograph that was introduced into evidence showed that Williams had cuts on his chest, and the testimony at trial demonstrated that Williams’s blood was found in numerous places in his apartment. Based on Williams’s statement, he and Demetria both drank a substantial amount of alcohol to gain the courage to commit suicide. Viewed in the light most favorable to Williams, by drinking together, he and Demetria were each encouraged to commit suicide. It bears repeating that the statute that prohibits assisting suicide includes language that encouragement or assistance “in any manner” may be a punishable act.
Additionally, there was other evidence that Williams encouraged Demetria to commit suicide. During Agent Marsh’s interview of Williams, Williams stated that he and Demetria had been discussing suicide since the previous summer. According to Williams, he talked about committing suicide more than Demetria did, “but she wanted to do it with me.” Williams also stated that he “probably brought it up in her mind.” Additionally, a reasonable person could have also concluded that, by providing the place to commit suicide and the kitchen knives to accomplish the task, Williams assisted Demetria in committing suicide. It is' necessary to remember that our task in analyzing this issue is solely to determine whether there was sufficient evidence to justify a jury instruction — not to weigh the evidence. Again, a criminal defendant is entitled to a lesser-offense instruction where there is an evidentiary basis for it in the record. McGowan v. State, 541 So.2d 1027, 1028-29 (Miss.1989).
Contrary to the substance of the majority’s opinion, the assisted-suicide statute does not require that the contemplated assistance or encouragement be persuasive, direct, or significant. Assistance or encouragement “in any manner” is sufficient to constitute the crime. As previously mentioned, a defendant is entitled to a lesser non-included-offense instruction “where there is evidentiary support that a defendant is guilty of a lesser charge arising'from the same nucleus of operative facts.” Green v. State, 884 So.2d 733, 737 (¶ 12) (Miss. 2004) (citing Mease v. State, 539 So.2d 1324, 1329 (Miss.1989)). “In fact, proposed instructions should generally be granted if they are correct statements of law, are supported by the evidence, and are not repetitious.” Id. at (¶ 13).

Williams, 53 So.3d at 789-90, ¶¶ 112-114 (Roberts, J., dissenting) (footnote omitted).

¶ 47. In sum, when viewed in the light most favorable to Williams, a reasonable juror could conclude that Williams and Bracey had entered into a suicide pact, an agreement whose fulfillment encouraged each party to commit suicide. With this agreement in mind, we find that a jury may have viewed the other evidence as supporting the proposition that Williams and Bracey had gone beyond mere conversations about committing suicide together. A jury may have reasoned that Williams’s accompanying Bracey to the ATM, purchasing alcohol, and lying to Bracey’s friend provided sufficient evidence of a suicide pact and were acts in furtherance of this pact sufficient to constitute encouragement. Moreover, the evidence also shows that Williams knowingly assisted Bracey by providing her with a knife to facilitate her suicide and a place (his closet) to commit the suicide together where their bodies would be hard to find. Consistent with this pact, Williams had marks on his body indicative of failed attempts to commit suicide. And for the sake of emphasis, we note again that the jury also had before it Williams’s statement that Bracey had stabbed herself. Given all this evidence, in the light most favorable to Williams, a hypothetical reasonable jury may have found the facts to be as Williams stated. Anderson, 571 So.2d at 964.

CONCLUSION

¶ 48. Because of the broad language of the assisted-suicide statute as well as our existing standard of review concerning whether a trial court should give an instruction on a lesser-nonincluded offense, we are constrained to find that the learned trial judge in today’s case committed reversible error in failing to instruct the jury on the lesser-nonincluded offense of assisted suicide. We recognize that a trial judge’s error in failing to give a jury instruction often will be deemed harmless based on the totality of the record; however, the failure to give the assisted-suicide instruction in today’s case may have been the difference in a conviction for a lesser offense with a substantially lesser penitentiary sentence as opposed to a murder conviction and a life sentence. See Brown v. State, 39 So.3d 890, 900 (Miss.2010). Therefore, we reverse Williams’s conviction for murder and sentence of life imprisonment in the state penitentiary, and we remand this ease to the Circuit Court of Lafayette County for a new trial consistent with this opinion.

¶ 49. REVERSED AND REMANDED.

DICKINSON, LAMAR, KITCHENS AND CHANDLER, JJ„ CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., RANDOLPH AND PIERCE, JJ.

WALLER, Chief Justice,

Dissenting:

¶ 50. A defendant may request a jury instruction on a lesser-nonincluded offense when the evidence supports the inclusion and the lesser offense originates from common facts. Here, I find no evidence supporting the assisted-suicide instruction requested by Williams. His defense at trial was he did not commit murder and not that he merely assisted the victim in suicide. Because the overwhelming facts support a murder conviction and because of the lack of a factual basis to support the lesser-nonineluded offense of assisted suicide, I respectfully dissent.

I. The assisted-suicide jury instruction is not supported by evidence.

¶ 51. Even viewing the evidence in a light most favorable to Williams, no reasonable jury could find him guilty of assisting suicide “without resorting to speculation or conjecture” as to the meaning of the evidence. Brazzle v. State, 13 So.3d 810, 818 (Miss.2009) (en banc). Williams had to demonstrate two things to avail himself to an assisted-suicide instruction— that Bracey had committed suicide and that he had helped. The only evidence Williams presented at trial to support his assisted-suicide theory was that he and Bracey had formed a mutual agreement to commit suicide together — a suicide pact.

¶ 52. The plain meaning of a suicide pact — a mutual agreement to die at the same time — does not suggest encouragement or assistance of suicide as contemplated by Mississippi Code Section 97-3-49. See Williams, 53 So.3d at 774-77. First, the evidence at trial does not support that Bracey did take her own life. Second, even if we assume she did, no evidence at trial even slightly suggested that she was encouraged or advised to act because of a mutual agreement with Williams. And he offered no evidence at trial to explain how a suicide pact encouraged or assisted her alleged suicide. Further, for us to interpret the meaning of an alleged suicide pact between these two people (e.g., did she enter it because he forced her, or did she already intend to commit suicide ...) requires a level of speculation not allowed by our law. The stated findings in the Majority opinion do not support Williams’s contention that they had agreed to commit suicide. See Maj. Op. ¶ 46. Had they, in fact, agreed to commit suicide, it does not follow that Williams assisted or encouraged Bracey’s decision simply because it occurred at his apartment and with his kitchen knife.

II. A lesser-nonincluded-offense instruction must arise from the same facts alleged in the indictment.

¶ 53. Some sets of facts lend themselves to prosecution for two separate and distinct offenses. A defendant is entitled to jury instructions on a lesser-noninclud-ed offense when the set of facts surrounding the crime reasonably shows that the defendant is guilty of two crimes — the crime charged and the lesser-nonineluded offense — “without any inconsistency in evidentiary or ultimate findings. ...” Griffin v. State, 533 So.2d 444, 448 (Miss.1988) (emphasis added). We explained the consistency-in-evidence requirement in Gangl v. State, 539 So.2d 132, 136 (Miss.1989) (en banc). The lesser-nonineluded offense must “arise[] out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment.” Id. See, e.g., Moore v. State, 799 So.2d 89, 90 (Miss.2001) (child-scalding incident implicated charges for either felony abuse or misdemeanor neglect).

¶ 54. The indictment here alleges that Williams murdered Bracey. Thus, this becomes the operative fact from which a lesser-nonincluded offense must arise. With the operative fact in mind, we consider all the evidence presented at trial to determine if it supports the requested instruction, without an inconsistency in the ultimate findings. While we do consider the evidence in the light most favorable to the accused, we cannot ignore evidence that is inconsistent with the defense’s theory or that supports the prosecution’s charge. See Griffin, 533 So.2d at 447; Boyd v. State, 557 So.2d 1178, 1182 (Miss.1989).

¶ 55. In our cases addressing lesser-nonincluded offenses, the accused has argued that he is “less culpable” by proposing jury instructions for an offense that logically would stem from the charge or from the operative facts in the indictment. See, e.g., Griffin, 533 So.2d at 447 (simple assault rather than rape); Boyd, 557 So.2d at 1182 (same); Moore, 799 So.2d at 90 (misdemeanor child-neglect rather than felony child-abuse). But here, Williams’s assisted-suicide instruction does not follow logically from a murder charge, and it contradicts the operative fact in the indictment. This result exceeds the boundaries and purpose of our holding in Griffin.

¶ 56. Within the operative facts of this case, Williams cannot be guilty of both murder and assisting suicide. The proposed assisted-suicide instruction requires an irreconcilable inconsistency in the evidence and ultimate findings. A murder charge requires the prosecution to prove the defendant killed the victim. See Miss. Code Ann. § 97-3-19(l)(a) (Rev.2006). Conversely, assisting suicide requires the prosecution to prove the victim killed herself. See Miss.Code Ann. § 97-3-49 (Rev. 2006). Because Williams has not shown how his assisted-suicide instruction follows from the operative facts in the indictment and the facts shown at trial, that he murdered Bracey, he is not entitled to the instruction.

III. When there is strong evidence of the indicted charge, the accused is not entitled to a jury instruction on a lesser-nonincluded offense.

¶ 57. Our cases allowing instructions for lesser-nonincluded offenses rely on the recognition that little or conflicting evidence existed on one element of the indicted crime. Brooks v. State, 18 So.3d 833, 840-41 (Miss.2009); Griffin, 533 So.2d at 447; Gangl, 539 So.2d at 135. Thus, we ask whether a reasonable jury could find Williams not guilty of murder. We need not make a determination on whether the jury could also find guilt for the lesser offense when there is strong evidence of the indicted charge. See Delashmit v. State, 991 So.2d 1215, 1222 (Miss.2008).

¶ 58. Here, the prosecution presented strong evidence of Williams’s guilt for murder. Bracey had been found dead from a knife wound at Williams’s apartment. Following her death, Williams covered her body to hide it from inspectors. Before he notified authorities of her death, he drank beer, watched television, played video games, and ordered pizza. Upon arrest, Williams confessed to the crime, stating “I must have done it. I was the only one there.” At trial, one expert opined that, because of the angle of the knife wound, the strangulation marks around her neck, and the defensive marks on her hand, Bracey’s death was a homicide. The other expert could state only that her death could have been a homicide or a suicide. However, after a review of all the evidence, not just the autopsy, no reasonable jury could have found him not guilty on any element of the murder charge. See Dampier v. State, 973 So.2d 221 (Miss.2008); Jones v. State, 918 So.2d 1220, 1234 (Miss.2005).

¶ 59. Because I would affirm the decision of the Court of Appeals, I respectfully dissent.

GRAVES, P.J., RANDOLPH AND PIERCE, JJ., JOIN THIS OPINION.

      . Williams also was a student at the University of Mississippi.

      . Klonopin is the brand name for clona-zepam, an anti-anxiety medication in the benzodiazepine family, the same family that includes diazepam (Valium), alorazikan (Xanax), lorazepam (Ativan), flurazepam (Dalmane), and others, http://www.med.icme net.com.

      . An autopsy revealed that the kitchen knife had penetrated between five and six inches into Bracey’s chest, which would have required "considerable” force.

      . Because the trial court excluded Father Rencher's statement to the police regarding his initial reaction to Bracey’s death, this Court does not rely on this statement in reaching its holding. This statement was never before the jury.

      . Williams is Caucasian, and Bracey was African-American.

      . However, so there be no misunderstanding as to a potential dispositive issue discussed by the Court of Appeals, we have considered Williams's assertions concerning the denial of his constitutional and statutory rights to a speedy trial, and find them to be without merit, as discussed by the Court of Appeals. Williams, 53 So.3d at 778-79, ¶¶ 67-71.

      . Again, this transcript of Marsh’s interview with Williams was received into evidence during the State's case-in-chief.

      . "Because suicide carries a tremendous social stigma, it is tempting to assume that if two lovers decide to commit suicide, one of them has to advise or encourage the other to do so.... [This] is by no means a logical inference that an appellate court may take notice of in determining whether there is sufficient evidence [for an assisted suicide instruction].”


source: Caselaw Access Project

author: KITCHENS, Justice,

license: Public Domain

text:
    HYUNDAI MOTOR AMERICA and Hyundai Motor Company v. Ola Mae APPLEWHITE, as Personal Representative of the Estate of and Wrongful Death Beneficiaries of Dorothy Mae Applewhite, Deceased; Ceola Wade, as Personal Representative of the Estate of and Wrongful Death Beneficiaries of Anthony J. Stewart, Deceased; and Ida Mae Cooper, as Personal Representative of the Estate of and Wrongful Death Beneficiaries of Cecilia Cooper, Deceased and Kenneth Carter.
    No. 2008-CA-01101-SCT.
    Supreme Court of Mississippi.
    Feb. 10, 2011.

      J. Collins Wohner, Jr., Jimmy B. Wilkins, Jackson, Thomas N. Vanderford, Jr., Michael King, Robert William Maxwell, attorneys for appellant.
    Ralph Edwin Chapman, Sara Bailey Russo, Dana J. Swan, Clarksdale, C. Kent Haney, Drew, attorneys for appellees.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. In this wrongful death, product liability case, the jury awarded the plaintiffs $4.5 million, or $1.5 million for each of three decedents, finding that the automobile at issue was defective in both its design and manufacture. In an effort to convince this Court to reverse the trial judgment and to render judgment in its favor, Hyundai challenges the reliability of the plaintiffs’ three experts on appeal. We find, from the record before us, that the trial judge did not abuse his discretion in allowing the jury to consider these experts’ testimony in reaching its verdict, and that, therefore, Hyundai is not entitled to judgment as a matter of law. However, because the plaintiffs failed in their duty seasonably to amend their responses to Hyundai’s requests for discovery, we reverse the judgment and remand the case for a new trial.

Facts

¶ 2. On July 9, 1995, around 8:00 a.m., Dorothy Mae Applewhite, Cecilia Cooper, and Anthony Stewart were traveling south on U.S. Highway 61 near Dundee, Mississippi. The three were returning home to Clarksdale after having worked the night shift at the Sam’s Town Casino in Tunica. The car was Applewhite’s 1993 Hyundai Excel. It is unclear who was driving, but the two women were in the front seats, and Stewart was on the rear seat.

¶ 3. One of their coworkers, Roland Jordan, was traveling in the same direction on Highway 61 just ahead of the Excel. Jordan testified that, at first, the Excel was driving normally. However, at some point, he noticed the car begin to weave. According to Jordan, the Excel drifted onto the left shoulder approximately three times. The third time, the Excel came back onto the roadway and swerved into the northbound lane, hitting an oncoming 1993 Lincoln Continental passenger car.

¶ 4. The Excel was torn into two pieces. The front portion of the vehicle came to rest sixty feet north of the point of impact. The passenger compartment stayed with the rear of the vehicle and came to rest six to ten feet north of the crash site. Apple-white and Cooper landed on the pavement, and Stewart was found partially inside the passenger compartment. All three died at the scene. The Continental’s occupants sustained non-life-threatening injuries.

¶ 5. At trial, the plaintiffs undertook to prove that the Excel was not crashworthy due to defects in both its design and manufacture. Plaintiffs adduced the testimony of three expert witnesses: Andrew Webb, an accident reconstructionist, James D. Mundo, an engineer, and Dr. Joseph L. Burton, a forensic pathologist specializing in biomechanics. Webb testified that he had used a computer program to reconstruct the accident and concluded that, had the Excel remained intact, the occupants would have experienced a change in velocity (or delta-v) of thirty-five miles per hour. Dr. Burton testified that at thirty-five miles per hour, it was “more likely than not” that the occupants would have survived the crash. Finally, Mundo opined that, in his expert opinion, the car was defective in both its design and manufacture, and these defects caused the car to come apart during the crash.

¶ 6. The defendant’s accident reconstruc-tionist, Dr. Geoff Germane, opined that, had the vehicle remained intact, the occupants would have experienced a delta-v ranging from fifty-five to sixty-seven miles per hour. Dr. Burton, the plaintiffs’ expert, conceded that a crash is not survivable with a delta-v in excess of fifty miles per hour.

¶ 7. On April 3, 2008, following nine days of testimony, the jury unanimously found that Hyundai was liable for the deaths based on the Excel’s defective design and defective manufacture. The jury awarded damages of $1.5 million for each of the three deaths and did not allocate any fault to the driver of the Excel. Hyundai appealed.

Issues

¶ 8. Hyundai raises numerous issues on appeal. First, Hyundai argues that it is entitled to judgment as a matter of law because all three of the plaintiffs’ experts offered unreliable testimony. Second, Hyundai argues that, in the alternative, it is entitled to a new trial based on six harmful errors: (1) Hyundai was ambushed at trial when Webb changed his opinion; (2) the jury’s allocation of 100% fault to Hyundai demonstrates the jury’s passion and prejudice in reaching its verdict; (3) Hyundai’s crash test videos were wrongly excluded; (4) seat belt evidence was wrongly excluded; (5) prior accidents evidence was wrongly admitted; and (6) the judge erred by refusing to dismiss a sleeping juror. Finally, Hyundai argues that, even if the judgment should stand, the trial judge’s imposition of an 8% post-judgment interest rate was unfairly punitive. We find that the trial judge did not abuse his discretion in allowing the jury to consider the plaintiffs’ expert testimony. However, the change in Webb’s opinion requires reversal. Because the plaintiffs’ failure properly and timely to notify the defendant of the change in Webb’s opinion is dispositive, we will not address the other issues.

Discussion

¶ 9. Whether a party is entitled to a judgment as a matter of law is an issue that we review de novo. Solanki v. Ervin, 21 So.3d 552, 565 (Miss.2009) (citing U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 964 (Miss.2008)). “This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence.” Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364, 368 (Miss.2008) (quoting Ala. Great S. R.R. Co. v. Lee, 826 So.2d 1232, 1235 (Miss.2002)). We will affirm the denial of a motion for a directed verdict, or a motion for a judgment notwithstanding the verdict, where there is “substantial evidence to support the verdict”; but we will reverse if “the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Martin, 998 So.2d at 964 (quoting White v. Stewman, 932 So.2d 27, 32 (Miss.2006)).

¶ 10. Conversely, this Court will not reverse a trial court’s denial of a motion for a new trial absent an abuse of discretion. Solanki, 21 So.3d at 569 (citing Pierce v. Cook, 992 So.2d 612, 620 (Miss.2008); Allstate Ins. Co. v. McGory, 697 So.2d 1171, 1174 (Miss.1997)). “[A] new trial becomes appropriate when a trial court determines that error within the trial mechanism itself has caused a legally incorrect or unjust verdict to be rendered.” Id. (quoting White, 932 So.2d 27 at 33).

¶ 11. As for evidentiary matters, including the allowance of expert testimony, this court applies an “abuse of discretion” standard. Bullock v. Lott, 964 So.2d 1119, 1128 (Miss.2007) (citing Webb v. Braswell, 930 So.2d 387, 396-97 (Miss.2006)).

I. The trial judge did not abuse his discretion by allowing the jury to consider the plaintiffs’ expert testimony.

¶ 12. Hyundai argues that the trial judge should have granted its motion for a directed verdict and/or its motion for a judgment notwithstanding the verdict because the Excel was not defective and the impact was not survivable as a matter of law. In making this argument, Hyundai attacks all three of the plaintiffs’ expert opinions, alleging that they were unreliable under the standards pronounced in Mississippi Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Hyundai argues that, because this evidence was unreliable, it could not have been relied upon to support the jury verdict. Therefore, although Hyundai presents this issue as a sufficiency-of-the-evidence argument, it is, in fact, attacking the admissibility of the expert testimony.

¶ 13. Mississippi Rule of Evidence 702, which governs the admissibility of expert opinions, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Furthermore, the expert must demonstrate that his or her opinion “is based upon scientific methods and procedures, not unsupported speculation.” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 457 (Miss.2010) (citing Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 947 (Miss.2008)). This Court has embraced the five, nonexclusive factors announced by the United States Supreme Court in Daubert, 509 U.S. 579, 113 S.Ct. 2786:

(1) whether the expert’s theory can be or has been tested;
(2) whether the theory has been subjected to peer review and publication;
(3) the known or potential rate of error of a technique or theory when applied;
(4) the existence and maintenance of standards and control; and
(5) the degree to which the technique or theory has been generally accepted in the scientific community.

Hill v. Mills, 26 So.3d 322, 330 n. 6 (Miss.2010) (quoting Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 37 (Miss.2003)).

¶ 14. As with all evidence, expert testimony must be relevant. M.R.E. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. “The threshold for admissibility is not great, keeping in mind the fact that Rule 401 favors the admission of evidence when it has probative value.” Utz, 32 So.3d at 457 (citing Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 417 (Miss.2009)). Thus, “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786.

A. Hyundai waived its Daubert objections as to Webb and Dr. Burton by failing to make contemporaneous objections.

¶ 15. As an initial matter, the plaintiffs argue that Hyundai did not preserve this error for appeal because “no proper Dau-bert challenges were made prior to or during trial.” Hyundai concedes that it never sought a pretrial exclusion of the plaintiffs’ expert testimony, but argues that it objected to that testimony during trial and that it raised the reliability issue in its motion for a directed verdict and in its post-trial motion for judgment notwithstanding the verdict, thus preserving the issue for appeal.

¶ 16. Although a pretrial motion and hearing challenging the admissibility of expert opinions may in some, if not most, cases be a prudent practice, this Court has held that this is not the exclusive means of mounting challenges to such testimony. Edmonds v. State, 955 So.2d 787, 792 (Miss.2007) (citing Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir.2006); Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir.2001)). This Court has quoted with approval the United States Supreme Court’s pronouncement that “[t]he trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.” Edmonds, 955 So.2d at 792 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (emphasis in original)). The United States Supreme Court went on to say:

Our opinion in Joiner makes it clear that a court of appeals is to apply an abuse-of-discretion standard when it “review[s] a trial court’s decision to admit or exclude expert testimony.” That standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion. Otherwise, the trial judge would lack the discretionary authority needed to both avoid unnecessary “reliability” proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises.

Kumho Tire, 526 U.S. 137 at 152, 119 S.Ct. 1167 (discussing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).

¶ 17. While the trial judge has discretion with regard to when and how to decide whether an expert’s testimony is sufficiently reliable to be heard by a jury, this does not eliminate the requirement that the party opposing the evidence make a timely objection to its being admitted into evidence. M.R.E. 103(a)(1). Mississippi Rule of Evidence 103 provides, in relevant part, that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n ease the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.

This rule is merely codification of our longstanding case law to the effect that the failure to make a contemporaneous objection to the evidence waives the issue on appeal. See e.g., Dep’t of Human Servs. v. Moore, 632 So.2d 929, 933 (Miss.1994); Miss. State Highway Comm’n v. Robertson, 350 So.2d 1348, 1350 (Miss.1977). “Objections must be made at the time offered in order to object to evidence via appeal.” Moore, 632 So.2d at 933 (citing Johnson v. Fargo, 604 So.2d 306 (Miss.1992); Anderson v. Jaeger, 317 So.2d 902, 907 (Miss.1975); M.R.E. 103(a)(1)). See also Robertson, 350 So.2d at 1350 (citing Lake v. Harrington, 210 Miss. 74, 48 So.2d 845 (1950)).

¶ 18. In the present case, all three of the plaintiffs’ experts were deposed months before trial. With the exception of Webb’s testimony, which will be discussed below, Hyundai does not argue that their opinions changed at trial. Thus, Hyundai was well aware of the substance of the plaintiffs’ expert testimony and had sufficient opportunity to challenge its reliability before trial. Instead, Hyundai waited until the trial was underway to make its Daubert objections.

¶ 19. Regarding Webb, Hyundai moved to strike his testimony before trial, not on a question of its reliability, but because of the plaintiffs failure timely to notify the defendant of a change in this expert’s calculations. It was not until after Webb had left the witness stand that Hyundai moved to strike his testimony based on its alleged failure to comply with Mississippi Rule of Evidence 702 and Dau-bert. The trial judge refused to grant the motion, stating that the “cow [whs] out of the barn.” In other words, the trial judge rightly refused to strike Webb’s testimony because the defendant had failed to make a contemporaneous objection and the testimony was already before the jury. Moore, 632 So.2d at 933. Webb had testified on direct, cross-examination, and redirect before Hyundai objected and moved to strike his testimony. Thus, we do not find that the trial judge abused his discretion by allowing the jury to consider his opinion.

¶ 20. As for Dr. Burton, Hyundai did not object to his testimony as unreliable until it moved the court for a directed verdict at the close of the plaintiffs’ casein-chief. As with Webb’s testimony, we cannot conclude that the trial judge abused his discretion by refusing to strike the testimony of Dr. Burton without a contemporaneous objection.

B. The trial judge did not abuse his discretion by finding Mundo’s testimony sufficiently reliable.

¶ 21. Finally, we consider the testimony of the plaintiffs’ design engineer, James Mundo. After Mundo had testified about his qualifications, but before he had given his expert opinions, Hyundai argued to the trial court that Mundo was not qualified to render opinions about the Excel’s design. The trial judge overruled the objection. Mundo then testified regarding his methodologies. Hyundai again objected, this time arguing that his opinion was not based on “reliable principles and methods” as required by Mississippi Rule of Evidence 702. The trial judge heard extensive arguments and ultimately ruled that Mundo’s testimony was sufficiently reliable to go before the jury. Therefore, in contrast to its belated objections to the testimonies of Webb and Dr. Burton, we find, as the trial judge did, that Hyundai timely raised a Daubert objection to Mundo’s expert testimony.

¶ 22. Mundo testified that the Excel was not properly designed and that it was not properly manufactured in that the welding of the Excel did not meet the manufacturer’s design specifications. Mundo also offered an alternative design of the A-pillar, a beam that connects the roof of the car to its body on either side of the windshield. He testified that his design would make the car significantly stronger and that implementing this design would not be cost-prohibitive to Hyundai.

¶ 28. Hyundai argues on appeal that Mundo’s opinions were unreliable because: (1) he assumed that the Excel was defective because it separated in the crash; (2) Mundo’s opinions did not meet the requirements of the Mississippi Product Liability Act (MPLA); (3) he based his alternative design on a single component of the vehicle using a computer program rather than “real-world testing”; and (4) his opinions that certain welds were defective were not sufficient to establish a “material” deviation from the manufacturer’s specifications.

(1) Mundo’s assumption that separation is per se defective

¶ 24. Hyundai first takes issue with Mundo’s statement that “cars aren’t suppose [sic] to be breaking into pieces.” Mundo conceded that a sufficiently severe crash could cause any car to separate, but he opined that this accident was an “average, middle-of-the-road, common-place type accident.” Essentially, Hyundai faults Mundo for relying on Webb’s reconstruction and Webb’s opinions regarding the severity of the crash. To find error on this point would require us to consider the reliability of Webb’s testimony. As discussed above, Hyundai did not raise a timely objection to the reliability of Webb’s expert testimony, and, therefore, the trial judge did not err in admitting Webb’s testimony. Because this argument is, in actuality, another attempt to attack the validity of Webb’s testimony, we decline to find any error respecting this issue.

(2) Mississippi Product Liability Act

¶ 25. To support a defective design claim, the plaintiff must prove that

(i) The manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and,
(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.

Miss.Code Ann. § 11 — 1—63(f)(i)—(ii) (Rev. 2002). In other words, the danger presented by the defect must be reasonably foreseeable, and a feasible design alternative must have existed.

¶ 26. Hyundai’s argument on this issue is that Mundo never refuted Hyundai’s evidence that the design of the Excel met or exceeded the state of the art for subcompacts in 1993. However, Mundo testified that the design methods he used were available in 1993. While Hyundai presented expert testimony to the contrary, we do not find error in the trial judge’s conclusion that this difference of opinion created a fact question for the jury and was not a basis for exclusion.

(S) Alternative A-pillar

¶ 27. Next, Hyundai criticizes Mundo’s alternative design because it was “an unvalidated computer simulation of a single component.” Mundo used a computer-aided design program to create a simulation of his alternative design to the A-pillar. Although the computer simulation of Mun-do’s design alternative was the car’s A-pillar rather than the entire frame, he testified at length about how his design would have included the strengthening of welds “throughout the cage structure.” Thus, contrary to Hyundai’s assertions, Mundo’s testimony indicated that his design alternative was not limited to a single component.

¶ 28. Hyundai also argues that Mundo’s opinions about his alternative design were not reliable without “real-world testing.” In other words, Hyundai argues that Mun-do was required to create a model of his alternative design and perform strength tests on the model in order to validate his opinion. Hyundai does not argue that the computer program Mundo used was somehow flawed. Rather, we are asked to hold that computer simulations alone are not sufficient to support expert testimony, which we decline to do. We are not prepared to say that an expert must physically build a model of his alternative design in order to demonstrate its efficacy. Mun-do’s utilization of a computer program for that purpose goes to the weight and credibility of such evidence and not to its admissibility.

(If) Defective Welding

¶ 29. Lastly, Hyundai criticizes the method Mundo used to form his opinion about the car’s welds. To support his theory that the welding was defective, Mundo pointed to nineteen welds that had come apart during the crash, all of which he considered to be defective. Hyundai criticizes Mundo’s methodology, arguing that there are thousands of welds on a vehicle, and Hyundai’s welding specifications allow a 10% margin of error in welding. Hyundai notes that nineteen out of three or four thousand do not amount to more than 10%. The plaintiffs defend Mundo’s methodology, arguing that he simply was using a sampling technique, and Hyundai does not dispute that sampling is a viable scientific method. As with Mundo’s alternative design testimony, Hyundai’s arguments on this point were for the jury’s resolution, and we cannot say that the trial judge abused his discretion by finding Mundo’s testimony sufficiently reliable for purposes of Mississippi Rule of Evidence 702.

II. Hyundai is entitled to a new trial because the plaintiffs failed timely and properly to disclose changes to Webb’s calculations.

¶30. Hyundai argues that it is entitled to a new trial because it was ambushed by changes to Webb’s opinion. One of Webb’s main contentions was that, had the Excel remained intact, the vehicle would have experienced a delta-v of no more than thirty-five miles per hour. Hyundai deposed Webb on December 18, 2007, at which time Webb gave a detailed explanation of his calculations. On February 6, 2008, Webb signed an errata sheet concerning his deposition testimony, changing four variables that he purportedly had used to make his calculations. Most notably, Webb changed the angle of the Excel from twenty-two degrees to forty-four degrees and increased the closing speed of the Excel from sixty-eight miles per hour to seventy-eight miles per hour. Despite these changes, Webb did not alter his ultimate conclusion that the car would have sustained a delta-v of only thirty-five miles per hour had it remained intact.

¶ 31. At trial, Webb testified about the errata sheet, claiming that he had to change several variables because he realized after he had been deposed that he had made some mistakes in his initial analysis. It is undisputed that Webb’s errata sheet was not meant to correct errors made by the court reporter or to clarify his testimony. On the sheet itself, Webb listed the reason for the changes as “range not asked.”

¶ 32. Hyundai moved to strike Webb’s testimony, alleging that it had never received the errata sheet and that these changes were a surprise. In response, the plaintiffs argued that the changes were not material because they did not alter Webb’s ultimate conclusion. The plaintiffs also produced a letter addressed to one of Hyundai’s attorneys and dated February 11, 2008, to demonstrate that they had forwarded Webb’s errata sheet to the defendant. The trial court heard extensive arguments on the issue and denied the defendant’s motion.

¶ 33. Mississippi Rule of Civil Procedure 26(f)(1) requires litigants to supplement interrogatory responses in regard to “the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony.” The rule also imposes a duty on the parties to amend a prior response when “the party knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.” M.R.C.P. 26(f)(2)(B). The failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence. Ekornes-Duncan v. Rankin Med. Ctr., 808 So.2d 955, 958 (Miss.2002). Rulings on discovery violations will not be overturned absent an abuse of discretion. Id. (citing Gray v. State, 799 So.2d 53, 60 (Miss.2001)).

¶ 34. The plaintiffs argue that they had no duty to amend their discovery responses because their February 11, 2008, letter demonstrates that Hyundai was provided the errata sheet and therefore had notice of the changes. The trial judge did not make a factual finding as to when Hyundai became aware of the contents of Webb’s errata sheet, but such a finding is unnecessary and irrelevant to our analysis. Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an ermta sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend or supplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So.2d 911, 916 (Miss.2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.

¶ 35. The plaintiffs argue that Webb’s changes were not material because they did not alter his opinion that, had the car not separated, the occupants would have experienced a delta-v of only thirty-five miles per hour. We disagree. The changes in Webb’s calculations were material changes because they were essential components of the basis for his opinion. When Hyundai attempted to cross-examine Webb about his calculations, Webb referred to his errata sheet at least seven times to demonstrate that he had corrected his mistakes. It is clear from Webb’s testimony that the figures on the errata sheet were important to his calculations. Moreover, when Hyundai’s experts performed crash testing, they used the figures given by Webb in his deposition in an attempt to refute Webb’s testimony. When Webb changed his calculations, the crash test using Webb’s initial calculations lost relevance.

¶ 36. Despite the plaintiffs’ failure to comply with Rule 26(f), the trial court refused to grant Hyundai any relief. We find that, in doing so, the trial judge abused his discretion. We do not condone trial by ambush. Hyundai was entitled to full and complete disclosure of the plaintiffs’ expert testimony, and neither these plaintiffs nor any other party litigant may rely on a witness’s notations on a deposition errata sheet as a substitute for formal and timely supplementation. Accordingly, we find that this issue warrants reversal.

Conclusion

¶ 37. We hold that Hyundai is not entitled to a judgment rendered in its favor on appeal based on the trial judge’s allowing the plaintiffs’ expert testimony (which Hyundai asserts was unreliable) to be adduced before the jury. This issue can be revisited on remand, in the event the defendant interposes timely and appropriate objections. However, it was error to refuse relief to Hyundai in consequence of the plaintiffs’ failure to amend their responses regarding Webb’s opinion under Mississippi Rule of Civil Procedure 26(f). For these reasons, we reverse the judgment and remand the case for a new trial.

¶ 38. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PIERCE JJ„ CONCUR.