author: COLEMAN, Justice, for the Court: CHANDLER, Justice, KING, Justice,

text:
    Tyrell WILLIAMS v. STATE of Mississippi.
    No. 2011-CT-00081-SCT.
    Supreme Court of Mississippi.
    March 28, 2013.
    Rehearing Denied June 27, 2013.

      Office of Indigent Appeals by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

      . The record contains some perplexing inconsistencies. Officer Joel testified that the rape kit "was submitted in February after Mr. Williams’ arrest” because Williams gave a blood sample, and law enforcement requested that the crime lab compare Williams's DNA with any DNA found in the rape kit. However, elsewhere in the record, it appears that Williams was not arrested and interrogated until the end of July, approximately six months after the alleged incident.

   ON WRIT OF CERTIORARI

COLEMAN, Justice, for the Court:

¶ 1. Tyrell Williams was convicted of sexual battery and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Williams asserts he did not knowingly waive his constitutional rights, and the trial court therefore erred in denying his motion to suppress his inculpatory statement. Because the trial judge applied an incorrect legal standard at the suppression hearing, we reverse and remand for a new suppression hearing and a new trial.

Factual Background and Procedural History

¶ 2. Tyrell Williams was charged with sexual battery of a thirteen-year-old-girl, Ann Smith. Williams was twenty-four years old at the time of the alleged incident. Ann provided the following testimony: On January 30, 2009, Ann was walking home from school, and Williams called to her as she walked by his house. She went over to see what he wanted, and Williams forced her into the house, took her to a bedroom, locked the door, and forced her to have sexual intercourse and oral sex. She testified that Williams had threatened to kill her if she told anyone, so initially she did not tell her mother what had happened. Ann’s mother testified that Ann was late coming home from school on the day of the incident, and she thought Ann was acting strangely. After discovering that Ann’s underwear was wet, she took her to the hospital. Ann eventually told the nurse and her mother what happened.

¶ 3. Williams was arrested for sexual battery. Williams’s mother testified that, when she learned of the arrest, she went to sheriffs department and spoke with the arresting officer, Jeff Joel. She told Officer Joel that Williams was “sort of like mental incompetent” and asked if she could be in the room when Williams was questioned. She testified that Officer Joel would not allow her in the room because Williams was over eighteen years old. Officer Joel testified that he verbally advised Williams of his Miranda rights and gave him a written copy of his rights, which Williams signed, indicating that he understood and waived those rights. Officer Joel then took a recorded statement, and Williams confessed to sexual intercourse and oral sex with Ann. Williams claimed Ann approached him and offered to have sex with him. He also claimed he asked Ann how old she was and that she said she was eighteen.

¶4. Williams filed a motion for mental examination, and the trial court granted the motion. Williams was examined first by Dr. Gilbert S. Macvaugh, who found that Williams had a full-scale IQ of 53 and that he was “functioning in the mildly mentally retarded range of intelligence.” Dr. Macvaugh wrote that Williams “appear[ed] to be attempting to malinger symptoms of psychosis ... [and] there was some indication that he may have been attempting to malinger memory and other cognitive deficits retrospectively (at the time of his statement to law enforcement).” Dr. Macvaugh was unable to opine “to a reasonable degree of medical certainty” whether Williams had the capacity to knowingly and intelligently waive his constitutional rights at the time of his confession. He recommended that Williams be evaluated further on an inpatient basis.

¶ 5. Williams was admitted to the Mississippi State Hospital and observed for two months. After that time, Drs. Robert McMichael and Amanda L. Gugliano issued a report, in which they concluded that Williams was competent to stand trial and had “the capacity presently to understand and knowingly, intelligently, and voluntarily to waive or assert his constitutional rights.” However, like Dr. Macvaugh, they could not say whether Williams had the capacity to waive or assert his rights at the time of his confession.

¶ 6. Williams moved to suppress the statement he had made to Officer Joel, and the trial court held a suppression hearing. Williams’s mother testified that Williams had received a disability check since age five or six, and that she had taken him to see mental health workers on a regular basis since he was five years old. She testified that Williams was in special education throughout school, he did not graduate high school, and he was not able to drive, work, or live alone.

¶7. Officer Joel also testified at the suppression hearing. Officer Joel testified that his general practice for a suspect interview was to inform the person of the charges against them and to explain what would be discussed. He would then “go over the rights form with them, explain them [the rights] step by step, ask for questions if [they] are not understanding, [and] explain to them how the interview process is going to work.” Then he would start the tape recorder, “read their rights to them again[,] and ask that a verbal acknowledgment be stated after each right.” Williams signed the “rights form” indicating he had been verbally advised of his Miranda rights and waived those rights. Officer Joel testified that he believed Williams understood his rights. He said Williams’s answers were responsive, he was not hesitant in responding, he provided extreme detail about the incident, and he even corrected Officer Joel’s misstatement of the facts. Williams raised the issue of Ann’s age without being asked or prompted, and at the end of the interview, Williams said he should not have talked to Officer Joel and that he was in trouble now.

¶ 8. After considering the testimony and the evidence, the trial judge denied Williams’s motion to suppress. He did not enter an order or findings of fact and conclusions of law pertaining to this ruling, but he discussed his findings on the record at the hearing. The judge reviewed the reports from the Mississippi State Hospital doctors and summarized their findings as follows:

[T]hey are unanimous in their opinion that Mr. Williams does have the sufficient present ability to consult with an attorney with a reasonable degree of rational understanding in the preparation of his defense, and that he has a rational as well as a factual understanding of the nature and the object of the legal proceedings against him; that they are also unanimous in their opinion that he has the capacity presently to understand and knowingly, intelligently, and voluntarily to waive or assert his constitutional rights[,] particularly his right not to incriminate himself and his right to a trial; and then thirdly, they say, “We are unable to form an opinion regarding whether or not Mr. Williams had this capacity at the time of his statement to authorities.”

The judge concluded that, because the doctors were unable to form an opinion as to whether Williams was able to understand and knowingly waive his rights, then it fell to the court to make that decision.

¶ 9. In addition to the doctors’ reports, the judge heard testimony from two fact witnesses, and he found Officer Joel’s testimony to be credible. Regarding Williams’s statement to Officer Joel, the judge said:

I have looked at the statement that was given. The statement certainly, as defense counsel stated it would, appears to be rational responses to questions that are asked. There’s nothing in the statement that jumps off the page at you to suggest that Mr. Williams did not understand what was going on at the time, did not understand what he was being questioned about. His responses are appropriate, given the content of the questions. So the State is correct that it was ... Mr. Williams that pointed out the — about asking about the age of the girl or — “I asked her how old she was. She said she was about 18.” That was an unsolicited response or unsolicited information which seems to — or would seem to suggest some level of understanding on his part as to the nature of the proceedings, the fact that the girl being — or the age of 18 being significant, I think, in a case such as this.

The judge also thought Williams’s statements at the end of the interview — that he should not have talked and that he was in trouble now — suggested an understanding of the nature of the proceedings. The judge was concerned with Williams’s low IQ but noted that it is just one factor to consider “in assessing whether or not he would have a genuine understanding or sufficient understanding of his rights.”

¶ 10. Ultimately, the trial judge concluded: “[Biased on the evidence I have in front of me, I cannot rule that he did not understand his rights as they were stated to him by Jeff Joel. Therefore, I’m not going to suppress the statement.” The case proceeded to trial, and Officer Joel was allowed to testify regarding Williams’s statement. The jury found Williams guilty of sexual battery, and the judge sentenced him to twenty years in the custody of the MDOC. Williams appealed, and the Court of Appeals affirmed. Williams v. State, 115 So.8d 805 (Miss.Ct.App.2012). We granted Williams’s petition for writ of cer-tiorari.

Discussion

¶ 11. The only issue on appeal is whether the trial court erred in denying Williams’s motion to suppress the statement he made to law enforcement officials. “This Court will reverse a trial court’s finding that a confession is admissible only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence.” Martin v. State, 871 So.2d 693, 701 (¶ 30) (Miss.2004) (quoting Duplantis v. State, 644 So.2d 1235, 1243 (Miss.1994)). Determining whether the trial judge applied the correct legal standard involves a determination that the correct burden of proof was applied. Neal v. State, 451 So.2d 743, 753 (Miss.1984) (citations omitted).

¶ 12. We repeatedly have held that when the admissibility of a confession is challenged, the “State has the burden of proving voluntariness of the confession and it must be proved beyond a reasonable doubt.” Jones v. State, 841 So.2d 115, 130 (¶ 38) (Miss.2003) (citing Mettetal v. State, 602 So.2d 864, 868 (Miss.1992); Neal, 451 So.2d at 753). In addition to a confession being voluntary, waiver of one’s rights in making that confession must be knowing and intelligent. ‘When an accused makes an in-custody inculpatory statement without the advice or presence of counsel, even though warnings and advice regarding his privilege against self-incrimination have been fully and fairly given, the State shoulders a heavy burden to show a knowing and intelligent waiver.” Neal, 451 So.2d at 753 (citing Fare v. Michael C., 442 U.S. 707, 724, 99 S.Ct. 2560, 2571, 61 L.Ed.2d 197, 212 (1979); Miranda, 384 U.S. at 475, 86 S.Ct. at 1628; Abston v. State, 361 So.2d 1384, 1391 (Miss.1978)).

¶ 13. Where the issue of mental retardation is raised, as it is here, “the trial judge must first determine whether the accused, prior to the confession, understood the content and substance of the Miranda warning and the nature of the charges of which he was accused.” Martin, 871 So.2d at 701 (¶ 29) (citing Neal, 451 So.2d at 755). We have held that “mild mental retardation of the defendant does not render a confession per se involuntary; rather, the defendant’s mental abilities are but one factor to be considered.” Harden v. State, 59 So.3d 594, 605 (Miss.2011) (citing Neal, 451 So.2d at 756). The court must consider the totality of the circumstances to determine whether a knowing and voluntary waiver has occurred. Smith v. State, 534 So.2d 194, 197 (Miss.1988).

¶ 14. “When all of the facts and circumstances of the particular confession and the interrogation leading up to it are considered — including the accused’s abilities — the trial judge must find as a fact whether the confession was intelligently and voluntarily made.” Neal, 451 So.2d at 756. Again, the State bears the burden of proving beyond a reasonable doubt that the defendant made a knowing and intelligent waiver of his rights and that his confession was voluntary. Jones, 841 So.2d at 130 (¶ 38); Neal, 451 So.2d at 753. When the trial judge applies the correct legal standard and considers the totality of the circumstances surrounding the confession, the trial judge’s fact finding on “whether the confession was intelligently and voluntarily ... will not be disturbed unless we find it clearly erroneous.” Neal, 451 So.2d at 756. However, where the trial court applies an incorrect legal standard, we must reverse. Duplantis, 644 So.2d at 1243-44.

¶ 15. At the end of the suppression hearing, the trial judge concluded: “I cannot rule that [Williams] did not understand his rights as they were stated to him by Jeff Joel. Therefore, I’m not going to suppress the statement.” In so finding, the trial judge reversed the applicable standard and improperly placed the burden on the defendant to prove that he did not understand his rights. The burden was on the State to prove beyond a reasonable doubt that Williams did understand his rights and that he made a knowing, intelligent, and voluntary confession. Because the trial judge articulated an incorrect legal standard, we reverse and remand the matter for a new trial. Prior to the trial, the judge should hold a new suppression hearing and apply the standards set forth herein. Further, because the Court of Appeals erroneously held that the trial judge applied the correct legal standard, the judgment of the Court of Appeals also is reversed.

Conclusion

¶ 16. The trial judge applied an incorrect legal standard by shifting the burden of proof to the defendant. Therefore, the judgments of the Court of Appeals and of the Circuit Court of Bolivar County, Second Judicial District, are reversed, and the case is remanded for a new suppression hearing and a new trial.

¶ 17. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR AND PIERCE, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

CHANDLER, Justice,

concurring in part and dissenting in part:

¶ 18. I write separately to express my concerns about Williams’s ability to knowingly, intelligently, and voluntarily waive his Miranda rights. A waiver is an intentional relinquishment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (emphasis added). We must “‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights and ... we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Id. (citations omitted). The prosecution bears the heavy burden of proving beyond a reasonable doubt that a waiver was knowing, voluntary, and intelligent. Jordan v. State, 995 So.2d 94, 106 (Miss.2008).

¶ 19. For a waiver to be knowing and intelligent, it must be “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). According to the tests administered by Gilbert S. Mac-vaugh, Williams had an IQ of 53, which is three standard deviations below the mean. He had a verbal IQ score of 55, in the “extremely low” range. Dr. Macvaugh reported that Williams’s verbal IQ score places him in the lowest one tenth of one percent of the population.

¶20. According to the Diagnostic and Statistical Manual of Mental Disorders, a person with an IQ score of 50-55 is within the score range of moderate mental retardation or mild mental retardation. Dr. Macvaugh noted that Williams had scored in the “upper moderate to lower mild range of mental retardation.” According to the DSM-IV,

Moderate mental retardation is roughly equivalent to what used to be referred to as the educational category of ‘trainable.’ ... Most of the individuals with this level of mental retardation acquire communication skills during early childhood years. They profit from vocational training and, with moderate supervision, can attend to their personal care. They can also benefit from training in social and occupational skills but are unlikely to progress beyond the second-grade level in academic subjects. ...

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.1994) (emphasis added). An adult moderately mentally retarded person has “a mental age of 6 to 8 years.” John W. Jacobson and James A. Mulick, Manual of Diagnosis and Professional Practice in Mental Retardation 18 (1996). These individuals “generally have functional language, although their intelligibility may be poor, but reading and money, or numbers, skills are typically not functional, and some supervision of self-care may be necessary.” Id. For these individuals, “adult independence typically is not achieved;” usually, they must reside with relatives or in an out-of-home care setting. Id.

¶ 21. This is consistent with Dr. Mac-vaugh’s findings regarding Williams. His sentence-comprehension was at the third-grade level. His “general fund of knowledge appeared impoverished.” Williams could not spell the word “world.” He did not know the meaning of common sayings like “one cannot judge a book by its cover” and “there is no use crying over spilled milk.” His only job lasted for two months, he has never lived independently, and he has received a disability check since he was four or five years old. His mother manages his finances and does his grocery shopping. His mother reported that he “is a pleaser of authority ... easy to be influenced, he will agree with you if you don’t get mad at him.” Dr. Macvaugh had difficulty teaching Williams abstract concepts, such as the plea-bargaining process. In fact, Williams was found competent to stand trial only after two months of training, after which the psychologist concluded that “complex legal concepts will need to be explained to him in simple language.”

¶22. Regarding the characteristics of mentally challenged individuals in the criminal justice system, it has been said that

Many mentally retarded people have limited communication skills. The most seriously disabled persons have no expressive language and limited or no receptive language. Therefore, it would not be unusual for a mentally retarded individual to be unresponsive to a police officer or other authority or to be able to provide only garbled or confused responses when questioned. Even when the mentally retarded person’s language and communication abilities appear to be normal, the questioner should give extra attention to determining whether the answers are reliable. Several factors can influence the reliability of an answer. For example, many people with mental retardation are predisposed to “biased responding” or answering in the affirmative questions regarding behaviors they believe are desirable, and answering in the negative questions concerning behaviors they believe are prohibited. The form of a question can also directly affect the likelihood of receiving a biased response, and thus police officers, judges, and lawyers may inadvertently or intentionally cause the susceptible mentally retarded accused person to answer in an inaccurate manner by asking a question in an inappropriate form.

James W. Ellis and Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L.Rev. 414, 428 (1985).

¶ 23. When Officer Joel administered the Miranda warnings, he made no effort to explain the warnings to Williams. Although Joel testified that Williams appeared to understand the warnings and responded affirmatively to Joel’s questions, those facts do not necessarily signify that Williams waived his rights “with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it” as required to satisfy the Fifth Amendment. There is a serious danger that Williams responded affirmatively in order to please Joel without any meaningful conception of the rights he waived in doing so. For these reasons, I believe the State fell woefully short of proving that Williams knowingly and intelligently waived his rights.

¶24. Requiring that the trial judge hold another suppression hearing on remand will do nothing to cure the lack of proof supporting the admission of Williams’s statement. While I concur -with the majority’s finding that the trial court applied the incorrect legal standard, I dissent to their ordering another suppression hearing. I would reverse the trial court’s decision admitting Williams’s statement and remand for a new trial in which the statement is. not placed into evidence.

KITCHENS AND KING, JJ„ JOIN THIS OPINION.

KING, Justice,

concurring in part and dissenting in part:

¶ 25. I agree that the trial court applied the wrong standard and impermissibly placed the burden of proof on Williams to establish that his statement was not the product of a voluntary, knowing and intelligent waiver of his Miranda rights. The impermissible shifting of the burden of proof was manifest error, and the resulting decision to admit Williams’s statement was not supported by the evidence.

¶26. Tyrell Williams is mentally retarded. His IQ is 53. He functions on a second-or third-grade level in all academic areas. He did not graduate from high school, and he participated in special education during his formal schooling. He has received disability benefits for mental incompetence since a very young age. While he can perform some basic household duties, he is unable to perform many simple tasks, such as going to the grocery store. He does not have a driver’s license, and his longest period of continuous employment was approximately two months. Williams also has a history of receiving both inpatient and outpatient mental health services for mental illness and substance abuse. Prior to the incident at hand, Williams had no prior felony arrests or convictions.

¶ 27. On January 30, 2009, Williams allegedly had sexual intercourse with then-thirteen-year-old Ann Smith. Several months later, Officer Jeff Joel arrested Williams in conjunction with this incident and transported him to the Bolivar County Sheriffs Department. Williams’s mother testified that, upon learning of Williams’s arrest, she went to the Sheriffs Department and explained to Officer Joel that Williams was mentally incompetent. Before beginning his interrogation, Officer Joel informed Williams of his Miranda rights. When Officer Joel read Williams his rights, Williams responded “Okay” to each of the rights. When asked if he understood his rights, Williams merely stated ‘Tes, sir.” No additional precautions were taken to ensure that Williams understood his rights, despite Officer Joel’s knowledge of Williams’s mental deficiencies. Williams subsequently made a statement admitting that he had sexual intercourse with Ann Smith, but stating that she told him that she was eighteen, which he believed.

¶ 28. Williams was indicted for the crime of sexual battery. On October 15, 2009, Williams’s counsel filed a Motion for Mental Examination to determine Williams’s competence. He further declared that it was very difficult to adequately prepare a defense due to Williams’s mental incompetence. The court granted the motion and ordered that Williams be evaluated to determine competence, including his capacity to knowingly, intelligently, and voluntarily waive or assert his constitutional rights.

¶ 29. On March 17, 2010, Williams was evaluated by Dr. Gilbert Macvaugh. Dr. Macvaugh issued a thorough eighteen-page report. He determined that Williams’s full-scale IQ was 53, that he functioned on a second- or third-grade level, and that overall, his comprehension was extremely impaired. He concluded that the evaluation suggested that Williams may have

deficits in his capacity to make a knowing and intelligent waiver of his right to silence and his right to legal counsel at the time of his statement to law enforcement, particularly in light of his severely low IQ and limited reading comprehension skills.... In my opinion, it is unlikely that a defendant with an IQ in the low 50s and reading comprehension skills at the second to third grade level would be capable of making a competent waiver of these rights.

Dr. Macvaugh did note that Williams

appeared to have at least some basic familiarity with these rights and was able to spontaneously recite some of the standard wording. However, his actual understanding of these rights, i.e., comprehension of the terms and phrases used in the Miranda warnings; appreciation of the role of defense counsel in that situation, etc., appeared rather limited because of his intellectual disability and his lack of experience in these situations (as evidenced by his confusion regarding the terms “appeal” and “appoint”).

However, because Dr. Macvaugh was concerned that Williams may have been attempting to retrospectively malinger memory deficits for his statement to law enforcement, Dr. Macvaugh determined that he was unable to form an opinion to a reasonable degree of certainty regarding Williams’s ability to knowingly and intelligently waive his Miranda rights. Dr. Macvaugh thus recommended that Williams be evaluated on an inpatient basis at the Mississippi State Hospital at Whitfield.

¶ 30. Williams spent nearly two months at the State Hospital, receiving inpatient observation. During this time, the State Hospital taught Williams about criminal court proceedings, particularly through his work with the Court Competence Assessment Group. At the end of his stay, Drs. McMichael and Gugliano issued a four-page “summary report.” The summary report stated that Williams “is mentally retarded.” The report noted that when Williams was first admitted, he

did not appear to appreciate the importance of his understanding criminal court proceedings. Over the course of this hospitalization, however, he has appeared to make more of an effort to learn this material. He then appeared to have memorized the basic facts of criminal court proceedings, but still could not apply these in hypothetical situation.

By the time of his final interview, Williams “demonstrated the ability to apply the information he had learned in the Court Competence Assessment Group to a variety of hypothetical situations.” The report concluded that Williams had the present capacity to knowingly and intelligently waive or assert his constitutional rights, but stated that the doctors “were unable to form an opinion regarding whether or not Mr. Williams had this capacity at the time of his statements to authorities.” The report further qualified that Williams could “understand his legal situation and confer rationally with his counsel” only if “[c]om-plex legal concepts [are] explained to him in simple language.”

¶ 31. After Williams’s time in the State Hospital, his counsel filed a Motion to Determine Ability to Stand Trial in which he maintained that, notwithstanding the doctors’ conclusions otherwise, Williams’s mental retardation made him unable to assist his attorney in preparing for trial. On December 2, 2010, the trial court held a hearing on this motion, as well as on the oral motion to suppress Williams’s statement to Officer Joel. Williams argued that his statement should be suppressed on the basis that his Miranda waiver was not knowing and intelligent. Williams’s mother testified regarding his inability to understand his Miranda rights. Officer Joel testified that Williams seemed to understand the rights that he was waiving. The trial court found Williams competent to stand trial based on the doctors’ opinions. The court then noted that Officer Joel’s testimony was that Williams had an understanding of his rights, and he noted that in his statement, Williams’s answers to Officer Joel’s questions and his statement at the very end of the interview that he should not have talked to Officer Joel and that he was in trouble showed an understanding of the nature of the proceedings in which he was engaged. The judge stated that “based on the evidence that I have in front of me, I cannot rule that he did not understand his rights as they were stated to him by Jeff Joel.” Thus, the trial court denied Williams’s motion to suppress his statement.

¶ 32. The Fifth Amendment to the United States Constitution provides that, in a criminal case, no person shall be compelled to be a witness against himself. U.S. Const, amend. V. Thus, in Miranda, the United States Supreme Court created procedural safeguards to protect the Fifth Amendment right to silence. Colorado v. Spring, 479 U.S. 564, 572, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (citing Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).

¶ 33. “[A] suspect may waive his Fifth Amendment privilege, provided the waiver is made voluntarily, knowingly and intelligently.” Spring, 479 U.S. at 573, 107 S.Ct. 851 (internal quotations omitted). “The inquiry whether a waiver is coerced has two distinct dimensions.” Id. at 573, 107 S.Ct. 851. First, the waiver must be voluntary, in that it must be a choice made freely and deliberately, without intimidation, coercion, or deception. Id. Second, the waiver must be knowing and intelligent, thus “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). Courts must examine the totality of the circumstances to determine if the “requisite level of comprehension” exists. Spring, 479 U.S. at 573, 107 S.Ct. 851.

¶ 34. The prosecution bears the burden of proving beyond a reasonable doubt that a statement was given after a valid waiver. Jordan v. State, 995 So.2d 94, 106 (Miss.2008). The determination of whether a defendant’s rights were waived voluntarily, knowingly, and intelligently is a mixed issue of law and fact. Id. “Therefore, this Court will not reverse a trial court’s findings if they were based on appropriate principles of law and supported by substantial evidence.” Id.

¶ 35. While I agree with the majority that the trial court applied the incorrect legal standard, I believe that, even under the correct legal standard, the State utterly failed to meet its burden of proof. The State should not get a second bite at the apple after its complete failure to meet its burden of proof, and Williams’s confession should be suppressed. The substantial evidence leads to the conclusion that the State did not prove beyond a reasonable doubt that Williams validly waived his constitutional rights, as his mental deficiencies prevented him from knowingly and intelligently waiving those rights. Only after two months of inpatient care focused on learning about the court system in the Court Competence Assessment Group at the State Hospital were state doctors able to declare Williams competent to stand trial. Even then, none of the three doctors who evaluated him could state that Williams was competent to waive his Miranda rights at the time that he did. The State Hospital doctors even noted that his understanding of the legal system was limited when he was admitted, and further opined that, due to his disability, he would be able to understand his legal situation only if complex legal concepts were explained in simple language. There is no evidence that Officer Joel explained Williams’s Miranda rights to him in simple language, despite Williams’s mother informing Officer Joel that Williams was mentally incompetent. Further, Dr. Mac-vaugh expressed serious concerns that someone of Williams’s mental capacity could knowingly and intelligently comprehend and waive his Miranda rights. Williams’s mother also testified as to her son’s mental deficiencies and his reliance on her to understand basic concepts. The only evidence that Williams knowingly and intelligently waived his Miranda rights was the testimony of Officer Joel that Williams understood his rights and answered his questions regarding the incident. This scant proof in the face of the abundant evidence of Williams’s mental deficiencies cannot meet the State’s burden of proof.

¶ 36. The evidence mandates the conclusion that Williams’s statement was made without “a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it” due to his mental deficiency. See Dover v. State, 227 So.2d 296 (Miss.1969) (suppressing a confession made by a defendant with an IQ of 60, and stating that “we are not prepared to state that a mentally deficient person of the caliber shown here can knowingly and effectively waive his constitutional rights”); Harvey v. State, 207 So.2d 108 (Miss.1968) (suppressing a confession made by a defendant with an IQ of 60). His IQ of 58 and his ability to function only at the level of a second- or third-grader, the fact that three doctors were unable to say that he comprehended the nature of his waiver, the fact that he could be declared competent to stand trial and to prepare a defense only after months of inpatient work in the State Hospital learning about the court system, combined with the fact that he was only found to be competent if complex legal concepts were explained in simple terms (something that was not done during his interrogation) establish that the State failed to prove beyond a reasonable doubt that Williams’s waiver of his Miranda rights was knowing and intelligent. Thus, the decision of the trial court to admit Williams’s confession was not supported by substantial evidence.

¶ 37. Accordingly, I would reverse the trial court’s decision to admit Williams’s confession and the Court of Appeals decision affirming that judgment, and remand the case for a new trial in which the confession is suppressed. The State failed to meet its burden of proof. I cannot agree that the State should now receive a second chance to prove that which it did not prove in the first instance.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . We use a fictitious name to protect the identity of the victim.

      . Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966).

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

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

      . As noted by the majority, the trial court placed much emphasis on the fact that Williams's answers to Officer Joel’s questions regarding the incident were responsive. However, responses to questions regarding a specific event (i.e., the alleged assault) do not evince comprehension of the complex legal concept of waiving one's Miranda rights.

      . The Mississippi Constitution similarly provides that, in a criminal prosecution, no person shall be compelled to give evidence against himself. Miss. Const, art. 3, § 26.

      . As noted, infra, the ability to answer direct questions regarding an event and the ability to comprehend the nature of constitutional rights are two horses of a different color.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Honda DOWNS and Robert Downs v. Peter L. ACKERMAN.
    No. 2011-CT-00089-SCT.
    Supreme Court of Mississippi.
    June 20, 2013.

      Kenneth M. Altman, Michael Scott Bishop, attorneys for appellants.
    H. Benjamin Mullen, Pascagoula, attorney for appellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. Honda Downs sued Dr. Peter Ack-erman for injuries sustained in a motor-vehicle collision when Dr. Ackerman rear-ended Downs. Dr. Ackerman admitted liability, and the case went to trial on damages. The jury awarded Downs $20,000; the trial court denied Downs’s motion for an additur or a new trial. Downs appealed, and the Court of Appeals found that the jury’s verdict was the product of bias, passion, or prejudice and was against the overwhelming weight of the evidence. The Court of Appeals reversed and remanded for an additur, or a new trial on damages if the additur was not accepted.

¶ 2. Dr. Ackerman filed a petition for a writ of certiorari, which we granted. We find that the trial court did not abuse its discretion by denying an additur or a new trial on damages. Therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the trial court.

FACTS

¶ 3. Downs worked as the manager of a clothing store. On September 7, 2007, Downs was traveling on Highway 90 in Ocean Springs, Mississippi, to make a bank deposit for her employer. Dr. Ack-erman rear-ended Downs when she was stopped at a red light. An ambulance transported Downs to the emergency room at Keesler Medical Center, where she was examined and had x-rays and an MRI. Downs was released and, for the next ten months, she returned for periodic followup visits at Keesler’s family-practice clinic for persistent neck pain. While Downs testified that, at these visits, she complained of headaches and balance problems, the Keesler records state that her balance was “normal” and her gait and stance were “normal.” Downs completed three months of physical therapy. On July 1, 2008, a nurse practitioner at Kees-ler restricted Downs from working “until further evaluation from Dr. John McClos-key.”

¶ 4. Downs’s first visit with Dr. McClos-key, a neurosurgeon, occurred on June 23, 2008. Dr. McCloskey testified by video deposition that he diagnosed Downs with three problems: posttraumatic neck and right shoulder pain, visual problems, and bilateral carpal tunnel syndrome. He testified to a reasonable degree of medical certainty that these three conditions had been caused by the accident. Dr. McClos-key testified that a MRI showed a disc bulge at C5-C6, and wear-and-tear changes at C-4, 5, C-5, 6, and C-6, 7. He testified that the cervical spine is “frequently injured or ruptured with heavy lifting or rear-end auto accidents.”

¶ 5. Dr. McCloskey referred Downs to a physical therapist for her neck and shoulder pain. He referred Downs for electrical studies for her hands, but the studies were negative for carpal tunnel syndrome. Nonetheless, Dr. McCloskey testified to a reasonable degree of medical probability that Downs suffered from carpal tunnel syndrome that had been caused by the accident. He testified that she should be limited to light work. Dr. McCloskey referred Downs to Dr. Terry Millette, a neurologist and neuroopthalmologist, for assessment of her visual problems.

¶ 6. Dr. Millette testified by video deposition that, after performing neurological testing, he diagnosed Downs with central disequilibrium syndrome associated with a high neck injury. He testified that the syndrome is caused by an abnormal brain stem reflex, and causes a feeling of disequilibrium and an abnormal gait. Dr. Mil-lette testified that Downs had the typical constellation of problems associated with the syndrome. He testified to a reasonable degree of medical probability that Downs’s central disequilibrium syndrome was related to the accident. Dr. Millette treated Down’s condition with clonazepam, which reduces the feeling of disequilibrium, and he testified that she had improved on the medication. However, he testified that her condition is permanent, and that she will need to be under a doctor’s continuing care for medication, physical therapy, and injections to diminish the symptoms.

¶ 7. On cross-examination, Dr. Millette was questioned about apparently contradictory statements he had made in a letter and documents he had filled out for GE-NEX, the company handling Downs’s workers’ compensation claim. In a October 8, 2008, letter, Dr. Millette stated that, from a neurologic standpoint, Downs could try to return to work. On October 20, 2008, he stated that it was within reasonable medical probability that Downs could perform the duties of a store manager. On June 3, 2009, he found that she had reached maximum medical improvement (MMI) on October 8, 2008. He stated that Downs needed no further diagnostic studies, must continue her present medication, and could perform her regular work full-time. He found no objective basis to give Downs an impairment rating. On September 3, 2009, he found she had reached MMI on August 18, 2009. He recommended no further treatment, and stated “I think that this nice lady should be allowed to return to work.” Over Downs’s objection, the trial court admitted these documents under Mississippi Rule of Evidence 803(6), finding that they were part of Dr. Millette’s medical records.

¶8. Dr. Terry Smith, an neurosurgeon, testified by video deposition that he had evaluated Downs on December 21, 2008. He testified that all of her treatment had been reasonable and necessary. In Dr. Smith’s opinion, Downs could return to work as a store manager.

¶ 9. Downs testified that, since the accident, she has experienced neck pain, headaches, pain in her hands, dizziness, balance problems, and vision problems. She testified that her hands have improved since she has been wearing splints at night, and that her disequilibrium problems have improved with medication. But her testimony indicated that her injuries have prevented her from participating in life to the degree to which she was accustomed prior to the accident. Downs’s husband, Robert Downs, testified that, since the accident, Downs had largely ceased socializing with her friends, and that he had to take care of their home and children because she could no longer do so.

¶ 10. Downs testified that she had missed a week of work after the accident and then returned to work until she was restricted from working on July 1, 2008. Downs was out of work from July 1, 2008, until September 9, 2009, when she got a new job at Target. She testified that she had attempted to return to work in fall 2008, but her employer had refused to allow her to return because she was taking clonazepam. She testified that she was, in fact, unable to perform the duties of a store manager at the clothing store, because that job required duties in addition to those listed on the job descriptions given to her physicians. She testified that these additional duties had required her to lift boxes of inventory that weighed up to 100 pounds. Downs also testified that, prior to the accident, she routinely had lifted boxes that weighed up to 100 pounds. Downs testified that her injuries have prevented her from being a hard worker and a good mother, friend, and wife. Downs testified that, due to her injuries, her “life is ruined.”

¶ 11. Downs sought to recover her past and future medical expenses, past and future lost wages, pain and suffering, and mental and emotional distress. She presented medical bills totaling $20,800.30 and claimed approximately $10,500 in past lost wages. The trial court entered an agreed order allowing Downs’s workers’ compensation insurance carrier, Sentry Insurance Company, to intervene in the action to protect its subrogation claim, which at the time of the motion to intervene totaled $30,608. Robert Downs asserted a loss-of-consortium claim. In closing arguments, Downs’s counsel argued that a fair verdict for Downs would be $251,000.

¶ 12. During deliberations, the jury sent out three questions to the court, asking “(1) Did Dr. Ackerman have insurance?;” (2) “How much did insurance pay toward medical bills?;” and (3) “Of amount of medical bills not covered by car ins. what was out of pocket expenses?” With the parties’ agreement, the trial court instructed the jury that “You are not to concern yourself with these issues. You are to concentrate on the evidence and testimony presented at trial. Continue to deliberate.” The jury returned a verdict for Downs in the amount of $20,000 and awarded nothing to Robert Downs. The trial court denied Downs’s post-trial motion for an additur or a new trial.

¶ 13. Downs appealed, arguing that the trial court should have granted her motion for an additur or a new trial on damages. This Court assigned the case to the Court of Appeals, which reversed and remanded for an additur, or if the additur was not accepted, a new trial on damages. Noting that Dr. Ackerman had offered no witnesses and merely had cross-examined Downs’s witnesses, the Court of Appeals found that Dr. Ackerman had failed to offer contradictory evidence rebutting Downs’s evidence that her injuries had been caused by the accident. The Court of Appeals concluded that, based on the record evidence, the verdict of $20,000 was against the overwhelming weight of the credible evidence and constituted inadequate compensation for Downs’s claimed damages. The Court of Appeals contrasted the amount of Downs’s medical bills of $20,800.30 with the verdict of $20,000 and inferred evidence of bias, prejudice, or passion. Also, the Court of Appeals found that the jury’s questions about insurance, along with the admission of the GENEX documents that referred to Downs as a “claimant,” indicated jury confusion.

¶ 14. We granted Dr. Ackerman’s petition for certiorari and now reverse the Court of Appeals and reinstate and affirm the trial-court judgment.

ANALYSIS

¶ 15. Mississippi Code Section 11-1-55, which provides for an additur or remitti-tur, states:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by Mas, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

Miss.Code Ann. § 11-1-55 (Rev.2002).

¶ 16. We review the trial court’s decision to deny an additur for abuse of discretion. Thompson v. Nguyen, 86 So.3d 232, 237 (Miss.2012). The party claiming an additur has the burden of proving his injuries and damages. Maddox v. Muirhead, 738 So.2d 742, 743 (Miss.1999). “We view the evidence in the light most favorable to the defendant, giving him all favorable inferences that may be reasonably drawn therefrom.” Id. (citing Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992)). The amount of damages is a question for the jury. Maddox, 738 So.2d at 743. Because a jury award is not merely advisory, it generally will not be “set aside unless so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Id. (quoting Rodgers, 611 So.2d at 945). “Additurs represent a judicial incursion into the traditional habitat of the jury, and therefore should never be employed without great caution.” Maddox, 738 So.2d at 743 (quoting Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988)).

¶ 17. The Court of Appeals found that Dr. Ackerman had failed to offer sufficient evidence to rebut Downs’s claim that her medical expenses were necessary and reasonable. This Court has held that “[w]hen a party takes the witness stand and exhibits bills for examination by the court and testifies that said bills were incurred as a result of the injuries complained of, they become prima facie evidence that the bills so paid or incurred were necessary and reasonable.” Estate of Bolden v. Williams, 17 So.3d 1069, 1071-72 (Miss.2009) (quoting Jackson v. Brumfield, 458 So.2d 736, 737 (Miss.1984)); see Miss.Code Ann. § 41-9-119 (Rev.2009). “The opposing party may then ‘rebut the necessity and reasonableness of the bills by proper evidence,’ ” and “[i]f the opposing party rebuts the medical bills by proper evidence, the question is ultimately one for the jury.” Estate of Bolden, 17 So.3d at 1072 (quoting Jackson, 458 So.2d at 737). Relying on these principles, the Court of Appeals held that Downs’s presentation of her medical bills, along with medical testimony that the bills were incurred due to the accident, constituted prima facie evidence that the bills were necessary and reasonable. The Court of Appeals held that Dr. Ackerman’s cross-examination of Downs’s experts was insufficient to rebut the presumption that her bills were necessary and reasonable.

¶ 18. Even if medical bills are necessarily and reasonably incurred for a particular condition, that fact does not “mandate a finding that those medical bills were incurred as a result of the accident in question.” Herring v. Poirrier, 797 So.2d 797, 809 (Miss.2000). Therefore, while Downs’s medical bills established a presumption that those bills were reasonable and necessary for the treatment of her injuries, her medical bills were not prima facie evidence that the accident was the proximate cause of Downs’s injuries. Downs had the burden to prove by a preponderance of the evidence that the accident proximately caused her neck injury, carpal tunnel syndrome, and central disequilibrium syndrome. Downs attempted to meet this burden with the testimony of Dr. McCloskey and Dr. Millette, who testified to a reasonable degree of medical probability that these conditions had been caused by the accident. Dr. Ackerman attempted to cast doubt on this causation testimony through cross-examination. Regarding proof of proximate cause of injuries incurred in a rear-end collision, we have stated that

A plaintiff has the burden of proof, and must offer evidence that persuades the jury. The jury is not required to believe or trust the evidence submitted by the plaintiff, and is free to accept all, part, or none of the plaintiffs evidence. A defendant is not required to prove or rebut anything.
[Expert opinions are] not obligatory or binding on triers of fact but [are] advisory in nature. The jury may credit them or not as they appear entitled, weighing and judging the expert’s opinion in the context of all of the evidence in the case and the jury’s own general knowledge of affairs.

Thompson v. Nguyen, 86 So.3d 232, 236-37 (Miss.2012) (citation omitted).

¶ 19. Through cross-examination, Dr. Ackerman sought to show that Downs’s injuries had not been caused by the accident. Dr. Ackerman cross-examined Downs’s physicians about the fact that her complaints had become dramatically worse ten months after the accident, when she saw Dr. McCloskey and was referred to Dr. Millette. Dr. Ackerman attacked Dr. Millette’s. opinion that the accident had caused Downs’s central disequilibrium syndrome by pointing to the records of Downs’s numerous visits to Keesler, which indicated that her gait and balance had been “normal” for ten months post-accident. “While Dr. McCloskey opined to a reasonable degree of medical probability that Downs had carpal tunnel syndrome, testing did not confirm that diagnosis, casting doubt on his conclusion that Downs had suffered carpal tunnel syndrome as a result of the accident. In closing arguments, Dr. Ackerman relied on the opinion of Dr. McCloskey to argue that Downs’s heavy lifting at work could have aggravated her neck to the degree that it caused her to develop carpal tunnel syndrome and central disequilibrium syndrome. Our standard of review demands that we view the evidence in the light most favorable to Dr. Ackerman and give Dr. Ackerman the benefit of all favorable inferences. So considered, we cannot say that the verdict was “so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Maddox, 738 So.2d at 743. The trial court was within its discretion in finding that the verdict was not against the overwhelming weight of the evidence.

¶ 20. Nor did the trial court abuse its discretion by finding that the verdict was not the product of bias, prejudice, or passion as a result of the GENEX letters. The Court of Appeals found that the jury’s questions, along with the admission of the GENEX letters, indicated that the jury was confused and that the verdict was the product of bias, prejudice, or passion. The jury’s questions were “(1) “Did Dr. Acker-man have insurance?;” (2) “How much did insurance pay toward medical bills?;” and (3) “Of amount of medical bills not covered by car ins. what was out of pocket expenses?” In denying the motion for an additur, the trial court stated that, when the jurors were departing the courtroom to begin deliberations, one juror had asked the court whether the jury could ask some questions. The trial court noted that, at that time, the jury did not have the GE-NEX letters. The trial court found that the jury’s questions did not relate to the content of the GENEX letters, but instead referred to medical or automobile insurance, matters of common knowledge. Therefore, the trial court found that the admission of the GENEX letters had not biased or prejudiced the jury. Indeed, the jury’s questions do not refer to workers’ compensation insurance or the GENEX letters, and as found by the trial court, refer to liability insurance. The trial court instructed the jury not to concern itself with these questions, but to continue to deliberate. We find no abuse of discretion in the trial court’s finding that the verdict was not the product of bias, prejudice, or passion. The trial court’s denial of Downs’s motion for an additur or a new trial on damages was not an abuse of discretion.

CONCLUSION

¶ 21. Because the trial court’s denial of Downs’s motion for an additur or a new trial on damages was not an abuse of discretion, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Jackson County Circuit Court.

¶ 22. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT^ COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . While Dr. McCloskey initially suspected a right-shoulder injury, an MRI revealed no problem with Downs's right shoulder.

      . Robert Downs's claim is not a subject of this appeal.


author: DICKINSON, Presiding Justice,

text:
    ONE 1970 MERCURY COUGAR, VIN # 0F9111545940; One 1992 Ford Mustang, VIN # FACP44E4NF173360; One Ford Mustang; And $355.00 U.S. Currency. v. TUNICA COUNTY, Mississippi.
    No. 2010-CT-02039-SCT.
    Supreme Court of Mississippi.
    June 20, 2013.

      Marvin D. Miller, John M. Colette, Jackson, attorneys for appellant.
    John T. Lamar, III, attorney for appel-lee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Five years after law-enforcement officials seized three cars and $355 cash from Willie Hampton in connection with his arrest, the Tunica County Circuit Court granted Tunica County’s petition for a forfeiture. Hampton appealed, arguing that the delay violated his right to a speedy trial. The Court of Appeals remanded, instructing the circuit court to establish a record on the Barker factors, but the circuit court denied the defendant — who was incarcerated at the time of trial — any opportunity to present evidence of prejudice, so we reverse.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 21, 2000, federal and state law-enforcement officials arrested Willie Hampton on narcotics charges. The Tuni-ca County Sheriffs Department seized a 1970 Mercury Cougar, two Ford Mustangs, and $355 cash from Hampton, and on March 30, 2000, the county filed a civil-forfeiture proceeding. On November 30, 2000, the Tunica County Circuit Court stayed discovery on the county’s motion until related federal criminal and civil proceedings concluded.

¶ 3. On December 17, 2001, after a period of more than one year without any action in the case, Hampton moved to dismiss the forfeiture petition. Neither party, nor the circuit court, took any further action until December 20, 2004, when the county filed a new forfeiture petition. On January 31, 2005, and February 18, 2005, respectively, Hampton and the circuit clerk moved to dismiss the case for failure to prosecute. Instead of dismissing the action, the circuit court granted the forfeiture on March 8, 2005.

¶ 4. Hampton appealed, arguing that the five-year delay in his forfeiture case violated his right to a speedy trial. On August 22, 2006, the Court of Appeals remanded the case:

in order to allow the parties to present a record that would allow analysis by this Court under the Barker standards. On remand, Tunica County will have an opportunity to explain the delay, and Hampton will have an opportunity to explain why he did not request a hearing for three years. Hampton would also have an opportunity to detail just what prejudice he may have suffered.

The court noted that the record was silent as to the reason for the delay and the prejudice Hampton suffered.

¶ 5. Nothing happened for seven months. On March 28, 2007, Hampton filed a motion in the circuit court seeking an explanation as to why the court had not held the Barker hearing. A week later, Hampton moved to have the circuit court order the county to proceed with the case. Still receiving no relief, Hampton sought a writ of mandamus from the Court of Appeals, but the circuit court responded that it was attempting to schedule a hearing and would rule on the case by November 1, 2007. The Court of Appeals dismissed the petition without prejudice.

¶ 6. Nothing happened for almost three years. On January 22, 2010, Hampton once again sought relief from the Court of Appeals, filing a motion for inquiry into the circuit court’s noncompliance with the mandate. He also filed a second petition for writ of mandamus February 10, 2010, and he moved to lift the stay — issued in November 2000 — in the circuit court. The circuit court set a hearing for February 24, 2010. One day before the scheduled hearing, Hampton moved for a continuance while awaiting relief from the Court of Appeals. The circuit court continued the hearing until April 21, 2010, and then to July 15, 2010.

¶ 7. Due to his incarceration in a federal penitentiary, Hampton petitioned the circuit court for a writ of habeas corpus ad prosequendum in order to attend the scheduled hearing. The circuit court granted Hampton’s petition, ordering that the warden of the United States Penitentiary in Florence, Colorado, take appropriate measures to provide for Hampton’s transportation. The court also ordered that Hampton pay all costs associated with his transportation and security. The U.S. Marshals’ Service informed Hampton that any transportation would have to be arranged by the circuit court. Hampton informed the circuit court of this response, but no transportation was provided.

¶ 8. Hampton also filed exhibit and witness lists and requested subpoenas for his witnesses. These subpoenas were issued for the scheduled April 21 hearing, which did not occur. After the hearing was postponed to July 15, Hampton requested subpoenas for additional witnesses.

¶ 9. On July 15, 2010, the circuit court held the hearing ordered by the Court of Appeals. Because the circuit court provided him no transportation, Hampton was not present but participated by telephone. An attorney, Robert Laher, entered an appearance, claiming he was present on behalf of Hampton, but “Not Counsel.” Hampton was listed as appearing pro se.

¶ 10. During the hearing, the court gave both Hampton (over the telephone) and the county an opportunity to explain how the Barker considerations applied to this case. The court refused to allow any witness testimony or documentary evidence, except that — at the county’s request — the court took judicial notice of a timeline of events in the case. The trial judge specifically told Hampton “[wje’re not here to involve ourselves with evidence.”

¶ 11. Hampton repeatedly argued that he had a right to be physically present at the hearing, a right to call witnesses, and a right to present evidence. The judge repeatedly stated that Hampton had only the opportunity to respond to the county’s argument. Further, the trial court questioned why Laher could not present Hampton’s case for him, to which Hampton responded he was proceeding pro se and that Laher was present only to ensure that someone could enter his appearance.

¶ 12. At the conclusion of the hearing, the court determined that, although Hampton may have suffered some prejudice, the delay was primarily caused by Hampton’s incarceration and the stay pending federal criminal and civil proceedings that finally concluded on August 24, 2009. The court determined that the delay did not violate Hampton’s right to a speedy trial.

¶ 13. Hampton appealed, arguing that the Court of Appeals should reverse the circuit court’s ruling because the trial court prevented his presentation of evidence and denied him the right to be physically present. The Court of Appeals affirmed the circuit court’s ruling, finding that the circuit court held a proper hearing to establish a record, and that no authority supports Hampton’s argument that he had a right to be physically present at a civil forfeiture proceeding.

¶ 14. Hampton filed his petition for writ of certiorari, arguing that the Court of Appeals erred by holding that the circuit court held a proper hearing on the Barker factors and that there is no due process right to be physically present at a civil-forfeiture proceeding. We granted certio-rari.

¶ 15. It is clear from the record that the circuit court denied Hampton any opportunity to present evidence of prejudice. Because the Court of Appeals relied on finding that Hampton had failed to present evidence of prejudice in affirming the trial court’s finding that the delay did not deny Hampton’s right to a speedy trial, we reverse the decisions of the Court of Appeals and the Tunica County Circuit Court. We remand the case to the Tunica County Circuit Court for a new hearing, at which the court will allow the parties to present evidence of the Barker factors.

¶ 16. And because the circuit court granted Hampton’s writ of habeas corpus ad prosequendum, we find it unnecessary to determine if due process required Hampton’s physical presence at the hearing. He had that right pursuant to the trial court’s order.

ANALYSIS

¶ 17. The Court of Appeals held that, on remand, Hampton failed to present evidence of prejudice, and it further held that his right to a speedy trial was not violated. But it is clear from the record that Hampton had no meaningful opportunity to present evidence. Accordingly, we reverse the Court of Appeals’ decision as well as that of the circuit court, and remand for a new hearing on the Barker factors.

¶ 18. Both the United States and Mississippi Constitutions guarantee a defendant’s right to a speedy trial which, according to the United States Supreme Court, applies in civil forfeiture proceedings. In Barker v. Wingo, the United States Supreme Court articulated four factors to determine whether a delay violates a defendant’s right to a speedy trial. Courts must consider the length of the delay, the reason for the delay, whether the defendant asserted his rights, and the resulting prejudice to the defendant.

¶ 19. In his appeal of the circuit court’s grant of a property forfeiture, Hampton argued that his right to a speedy trial was violated by a five-year delay. The Court of Appeals remanded the case to the circuit court because the record did not provide sufficient information for the court to consider the Barker factors and to determine whether the delay violated Hampton’s right to a speedy trial. The court explained that the record was silent as to the reason for the delay and the prejudice suffered. The court instructed that, on remand, Tunica County should explain the reason for the. delay and Hampton would explain the prejudice.

¶ 20. No citation of authority is necessary for the fundamental propositions that issues of fact are decided by the weighing of evidence, and that the arguments of counsel are not evidence. The Barker factors cannot be argued meaningfully without evidence to support the arguments. The trial court was required to allow the parties to “present a record” so that the court could determine the reason for the delay and whether Hampton suffered prejudice. Prior to the hearing on remand, Hampton filed exhibit and witness lists with the trial court. But the trial judge informed Hampton during the hearing that they were “there procedurally” and not there to “involve ourselves with evidence.”

¶ 21. Whether Hampton suffered prejudice because of the delay is a factual issue to be determined by weighing evidence. This is precisely the purpose articulated for our Rules of Evidence — “that the truth may be ascertained and proceedings justly determined” — and it is applicable to all proceedings save for a few enumerated exceptions not relevant here. Without the presentation of evidence, Hampton had no meaningful way to establish prejudice. The circuit court did not comply with the Court of Appeals’ instructions on remand.

¶ 22. The hearing transcript clearly demonstrates that Hampton repeatedly asserted his right to call witnesses and present evidence, in addition to asserting a right to be physically present. Additionally, the Court of Appeals — after acknowledging that Hampton was proceeding pro se — suggested that an attorney should have presented his evidence. But even if the attorney at the hearing had been there as Hampton’s counsel, the trial judge made it very clear that the purpose of the hearing was not to present evidence.

¶ 23. Because the Court of Appeals erroneously concluded that Hampton had an opportunity to present evidence, we must reverse.

¶ 24. We note that Hampton also argues that he had a due-process right to be physically present at the hearing. The Court of Appeals found that there is no authority supporting the existence of such a right in a civil forfeiture proceeding. But the trial court had granted Hampton’s petition for writ of habeas ad prosequen-dum, giving him the right to physically be present in this case, so we need not address this issue.

CONCLUSION

¶ 25. The Court of Appeals erroneously concluded that Hampton had an opportunity to present evidence of prejudice. The trial court denied Hampton any such opportunity. Because prejudice is a necessary Barker factor and the trial court failed to comply with the instructions on remand, the Court of Appeals erred in affirming the trial court’s finding that Hampton was not denied a speedy trial. We reverse the judgments of the Court of Appeals and the Circuit Court of Tunica County, and remand for a new hearing in which the parties will be allowed to present evidence related to the Barker factors.

¶ 26. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING.

      . Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (holding that when determining whether a delay in prosecution violates a defendant’s right to a speedy trial, courts must consider the length of the delay, the reason for the delay, whether the defendant asserted his rights, and the resulting prejudice to the defendant).

      . One 1970 Mercury Cougar, VIN No. 0F9111545940 v. Tunica County, 936 So.2d 988, 992-93 (Miss.Ct.App.2006).

      . Id.

      . U.S. Const, amend. VI; Miss. Const, art. 3 § 26.

      . United States v. Eight Thousand Eight Hundred & Fifty Dollars in U.S. Currency, 461 U.S. 555, 556, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983).

      . Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct 2182, 33 L.Ed.2d 101 (1972).

      . Id.

      . One 1970 Mercury Cougar, VIN No. 0F9111545940 v. Tunica County, 936 So.2d 988, 989 (Miss.Ct.App.2006).

      . Id. at 992.

      . Id.

      . «.at 992, 993.

      . Id. at 992.

      . Miss. R. Evid. 102.

      . Miss. R. Evid. 1101(b).

      . Id.


author: COLEMAN, Justice,

text:
    Jerry ROBINSON, Estate of Robert D. Robinson, Jerry G. Robinson Marital Trust, and Tri-State Brick & Tile Company, Inc. v. Robert HENNE, Hilda Henne Abbott, Linda Henne and Jodie Henne.
    No. 2012-CA-00301-SCT.
    Supreme Court of Mississippi.
    June 20, 2013.

      Fred L. Banks, Jr., Jackson, Robert Gregg Mayer, attorneys for appellants.
    John Breckenridge Hunt, IV, Shane F. Langston, Jackson, attorneys for appel-lees.
    Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. As a result of ongoing negotiations during trial regarding the ownership of a company, the two parties agreed to a compromise and apprised the circuit court of their agreement. The general terms of the agreement were contained on pieces of legal-pad paper and submitted to the court with the understanding that a subsequent formal agreement would be forthcoming. When a dispute arose as to a provision in the subsequent proposed formal agreement regarding the applicability of a condition precedent requiring the consent of a third-party creditor, the issue was submitted to an arbitrator. The arbitrator found the initial, handwritten agreement, which did not contain the third-party consent clause, to be binding and enforceable. The issue before the Court is whether the arbitrator’s decision should be vacated due to his refusal to consider parol evidence of the condition precedent. Finding no statutory grounds to disturb the arbitrator’s decision, we affirm the trial court and the arbitrator.

FACTS AND PROCEDURAL HISTORY

¶2. Tri-State Brick & Tile Company was formed by R.H. Robinson. Upon his death, all issued common stock was bequeathed to his son, Robert; all preferred shares, representing forty-eight percent ownership of the company, went to his daughter, Martha. The appellees, Robert Henne, Hilda Henne Abbott, Linda Henne, and Jodi Henne, are Martha’s heirs. Upon Robert’s death, the common shares, as well as operational control of the company, passed to the appellants, Jerry Robinson, the Jerry G. Robinson Marital Trust, and Robert’s estate.

¶ 3. After the Hennes discovered what they thought to be improper distribution of constructive dividends to the majority shareholders, they brought suit in Hinds County Circuit Court against Robinson on April 22, 2008. The trial began on July 11, 2011. On the fourth day of the trial, the parties reached a settlement. Counsel for the parties wrote the terms of the agreement on a legal pad, which was deemed the “term sheet,” and the parties asked that it be sealed by the court. Counsel for the Hennes also stated that the term sheet contained “general terms” and that the term sheet would be “subject to a more specific agreement to be executed by all parties.” The parties agreed that any dispute in the agreement would be submitted to an arbitrator mutually agreed upon, or if not, one selected by the court.

¶ 4. On July 22, 2011, counsel for the Hennes circulated a draft of the final formal agreement to counsel for Robinson. Counsel for Robinson agreed that the draft formal agreement was accurate except for some issues regarding carried-forward losses. Included in the draft was a provision stating that effectiveness of the agreement was conditioned on the approval of Trustmark — the third party creditor. On July 29, 2011, Trustmark informed all parties that it would not consent to the agreement. Following Trustmark’s decision, the Hennes suggested that all parties move forward based upon what was in the term sheet, which did not include the Trustmark consent clause. Counsel for Robinson responded that Trustmark’s consent had been considered an essential element of any settlement and refused to sign the formal agreement without the consent provision. In support of his reasoning, Robinson cited the fact that the term sheet required Trustmark’s release of Robinson from certain obligations, which could not be implemented without Trustmark’s consent. In response, the Hennes moved to appoint an arbitrator.

¶ 5. The arbitrator found that the term sheet constituted an enforceable agreement because there was a meeting of the minds as to the terms contained therein, the terms were unambiguous, and the agreement did not include a consent provision. Robinson, alleging that parol evidence should have been considered regarding the consent clause, moved for reconsideration. Upon reconsideration, the arbitrator found Robinson to be correct in his assertion that parol evidence should be considered in determination of whether there was a meeting of the minds. However, he maintained that the term sheet constituted an enforceable agreement and failed to address the consent clause issue. On December 21, 2011, the trial court affirmed the arbitrator’s finding and entered final judgment on behalf of the Hennes. Robinson timely appealed.

STANDARD OF REVIEW

¶ 6. The level of review afforded to the decision of an arbitrator is quite narrow and provided by statute. Craig v. Barber, 524 So.2d 974, 977 (1988); Miss. Code Ann. § 11-15-23 (Rev.2004). An arbitration award may be overturned only if the elements of the applicable statute are present. Wilson v. Greyhound Bus Lines, Inc., 830 So.2d 1151, 1157 (¶ 16) (Miss.2002).

DISCUSSION

¶ 7. Robinson does not dispute the arbitrator’s conclusion that there was a meeting of the minds regarding the general agreement contained within the term sheet; rather, he argues that the arbitrator was plainly wrong in failing to consider the condition precedent — the approval of Trustmark. Even if the arbitrator reached the wrong conclusion of law in his failure to consider the condition precedent, the Court has held that a mistake of law or of fact is not sufficient reason to overturn an arbitrator’s decision. “[T]he general rule is that [arbitrators] are the final judges of both law and fact, and an award will not be reviewed or set aside for mistake in either.” Hutto v. Jordan, 204 Miss. 30, 36 So.2d 809 (1948). The only basis recognized for reversal of an arbitrator’s decision is a violation of the appropriate statute. See Wilson, 830 So.2d at 1157 (¶ 16).

¶ 8. Robinson alleges that the arbitrator violated subsections (a) and (d) of Section 11-15-23 of the Mississippi Arbitration Act and asserts the Doctrine of Manifest Disregard in support of his argument. Though the Court has never directly addressed the applicability of the doctrine, our previous rulings direct us to conclude that it does not apply under Mississippi law.

¶ 9. Mississippi Code Section 11-15-23 provides the four grounds upon which an arbitrator’s decision may be vacated:

(a) That such award was procured by corruption, fraud, or undue means;
(b) That there was evident partiality or corruption on the part of the arbitrators, or any one of them;
(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the controversy, or other misbehavior by which the rights of the party shall have been prejudiced;
(d)That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

Miss.Code Ann. § 11-15-23 (Rev.2004).

¶ 10. The statute is identical to the corresponding provision in the Federal Arbitration Act (“FAA”). 9 U.S.C. § 10. The statutory language was developed in part by the American Arbitrators Association and was adopted verbatim by both Congress and the majority of jurisdictions. The standard requires substantial deference to the arbitrator.

¶ 11. Realizing that the standard allowed for a highly limited review of an arbitrator’s decision on appeal, the majority of jurisdictions and federal courts that considered the doctrine’s viability adopted the Doctrine of Manifest Disregard throughout the latter half of the Twentieth Century as a judicial remedy for the restrictive statutory language. Essentially, the doctrine provides an avenue for courts to overturn an arbitrator’s findings if there was a deliberate or unquestionable misapplication of law. By 2008, nineteen jurisdictions and every federal circuit court had adopted some version of Manifest Disregard.

¶ 12. In 2008 the United States Supreme Court made an ambiguous statement regarding Manifest Disregard. See Hall Street Assocs. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). Although the doctrine was not the basis for the parties’ dispute, the Court cogitated upon the essence of the doctrine and from where it emanated. “Maybe the term ‘manifest disregard’ was meant to name a new ground for review, but maybe it merely referred to the § 10 grounds collectively, rather than adding to them.... Or ... ‘manifest disregard’ may have been shorthand for § 10(a)(8) or § 10(a)(4)....” Id. at 585, 128 S.Ct. 1396 (internal citations omitted). What the United States Supreme Court made clear, however, is that the doctrine could not be used as grounds for vacating an arbitrator’s award separate and apart from Sections 10 or 11 of the FAA. Hall Street, 552 U.S. at 584, 128 S.Ct. 1396 (“We now hold that §§ 10 and 11 respectively provide the FAA’s exclusive grounds for expedited va-catur and modification.”). In other words, if the doctrine is to be employed, it must be found to exist within the words of the statute.

¶ 13. As would be expected, the Hall Street opinion left federal courts with the task of answering the “maybe” questions regarding the doctrine that the Supreme Court had asked but not answered. Not surprisingly, courts have come up with many different explanations. In the federal circuit courts, the Fifth, Eleventh, and First Circuits have decided that Hall Street completely abrogated the doctrine. See Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349, 355 (5th Cir.2009); Frazier v. CitiFinancial Corp., 604 F.3d 1313, 1324 (11th Cir.2010); Ramos-Santiago v. United Parcel Service, 524 F.3d 120 (1st Cir.2008). Conversely, the Second, Ninth, Sixth, and Seventh Circuits have found that the doctrine is still viable and lives within the words of the statute. See Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 548 F.3d 85 (2d Cir.2008); Coffee Beanery, Ltd. v. WW, L.L.C., 300 Fed.Appx. 415 (6th Cir.2008); Comedy Club Inc. v. Im-prov West Assocs., 553 F.3d 1277 (9th Cir.2009); Affymax, Inc. v. Ortho-McNeil-Janssen Pharms., Inc. 660 F.3d 281 (7th Cir.2011). The remaining circuits have not addressed the question since Hall Street.

¶ 14. While Hall Street was a pronouncement regarding cases governed by federal law, several states began to evaluate the validity of the doctrine as well. State courts have split on the question with some jurisdictions applying the reasoning to their own state arbitration statutes. Texas, Alabama, and New York no longer recognize the doctrine, but California, Wisconsin, and Georgia still believe it to be valid. See Michael H. Leroy, Are Arbitrators Above the Law? 52 B.C. L.Rev. 137, 181 (2011). Mississippi, however, had stated long before Hall Street that the only basis for vacating an arbitrator’s decision was a violation of the arbitration statute. Wilson v. Greyhound Bus Lines, Inc., 830 So.2d 1151, 1157 (¶ 16) (Miss.2002) (“[A]n arbitration award may only be overturned if the elements of the applicable statute are present.”). Robinson argues that the Court should adopt the doctrine and find that the arbitrator’s error amounts to a violation of state law. However, arbitration has existed in Mississippi for decades, and we have a well-developed body of law that strictly dictates our decisions when reviewing an arbitrator’s decision. As more fully set forth below, per the statutes that govern our review, we cannot overturn the decision of an arbitrator for simple mistakes of law or fact, and to the extent that the Manifest Disregard Doctrine allows courts to do so, we may not adopt it.

¶ 15. “[T]his Court has long acknowledged that arbitration ‘might proceed altogether on views of what was right and just between the parties without following either the rules that would govern a court of law or equity in circumstances.” Bailey Brake Farms, Inc. v. Trout, 116 So.3d 1064, at 1068 (Miss.2013) (quoting Craig v. Barber, 524 So.2d 974, 977 (Miss.1988)). The reason for such limited review is because the Court traditionally has viewed arbitration agreements as tantamount to a settlement between the parties where the arbitration agreement would be the “... exclusive source of rights and liabilities of the parties.” Hutto, 36 So.2d at 812 (citing Yarbro v. Purser, 114 Miss. 75, 74 So. 425, 427 (Miss.1917)).

¶ 16. Our cases, including Hutto, Barber, and Bailey Brake, make clear that Mississippi’s statute leaves no room for the doctrine. In an attempt to prove otherwise, Robinson first asserts that Manifest Disregard falls within the definition of “undue means,” as found in Section 11. A similar case, with only slightly different facts, came before the Court recently in Bailey Brake. There, as in the instant case, the respondent argued that the arbitrators’ decision was contrary to the evidence before them, and that the chancellor was therefore justified in his declaration that the arbitrators had used undue means in reaching their conclusion. Bailey Brake, 116 So.3d 1064, at 1067-68. Although the words “manifest disregard” were not explicitly used in the Bailey Brake opinion, the basis for the doctrine— that a finding of error of law or fact failed to constitute “undue means” — was still present in the Court’s decision. Id. at 1071.

¶ 17. In Mississippi, we have always considered “undue means” to constitute some nefarious conduct on the part of the arbitrator — not simply an incorrect or sloppy conclusion of law. McClendon v. Stewart, 133 Miss. 253, 97 So. 547 (Miss.1923). Therefore, even if we were inclined to adopt the doctrine, Section ll-15-23(a) of the arbitration act is precluded from being the vehicle for its application because the record is void of any evidence of fraud or corruption on the part of the arbitrator. Nearly ninety years ago, the Court made clear that “undue means” equals intentional malfeasance. In McClendon, the appellant, an elderly woman, contested the findings of an arbitrator because she “did not receive justice.” McClendon, 97 So. at 548. Finding that there was no evidence showing the woman had been taken advantage of or forced into the agreement, the Court held that error alone was not sufficient to disturb the arbitrator’s findings and would certainly not be considered “undue means.” Id. In the ten decades since McClendon, nothing in our jurisprudence would lead us to believe undue means was related in any way to simple errors of law or fact, however egregious they may be.

¶ 18. In addition to the “undue means” basis for overturning a decision, Robinson next asserts that the error in the arbitrator’s decision is of such a nature that one could say the arbitrator exceeded his powers and executed them imperfectly in violation of Section ll-15-23(d). However, Section 11 — 15—23(d) does not avail Robinson, either. In D’Angelo v. Hometown Concepts, Inc., 791 So.2d 270, 272 (¶ 10) (Miss.Ct.App.2001), the appellant urged the Court of Appeals to hold that an “evident miscalculation” would amount to an arbitrator exceeding his powers. Id. The Court rejected the request and concluded that a lack of evidentiary basis was not sufficient reason for modifying an arbitrator’s award, and that such action on the part of the arbitrator failed to constitute exceeding his powers. Id. Although the appellant in D’Angelo was seeking a modification of the award, the same reasoning applies to the vacatur of an award as well because the term “exceeded his powers” is found within the vacation statute. The Court reached a similar conclusion in J.H. Leavenworth & Son v. Kimble, 157 Miss. 462, 128 So. 354 (1930). The Kimble Court found that an arbitrator’s conclusion, which may exceed or be more limited in scope than what one party intended, does not fit the definition of imperfect execution or of the arbitrator exceeding his powers. Id.

¶ 19. In short, we consistently have held that a mistake of law, a mistake of fact, or a decision lacking an evidentiary basis is insufficient to constitute a violation of any of the four statutory categories that permit the vacatur of an arbitrator’s decision. Nothing in the record or the briefs indicates that the arbitrator resorted to “nefarious means” to reach his decision, or that he in any way recognized by statute or caselaw exceeded his authority as arbitrator. Absent such a showing, and despite errors of law or fact by the arbitrator, if any, we must and do affirm.

CONCLUSION

¶ 20. To vacate the judgment of an arbitrator, there must be a violation of the arbitration statute. However, time and again, this Court has found that errors of fact and law do not constitute a violation of either subsections (a) or (d) of Mississippi Code Section 11-15-23. We therefore affirm the decisions of both the arbitrator and of the trial court.

¶ 21. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, AND KING, JJ., CONCUR.

      . Alabama, Connecticut, Delaware, District of Columbia, Georgia, Indiana, Kansas, Louisiana, Maryland, Missouri, Montana, Nevada, New Jersey, New York, Rhode Island, Texas, Utah, Vermont, and Wisconsin all adopted some form of the doctrine through their respective courts, with the exception of Georgia, which codified it.

      . Some states have considered and rejected the doctrine. See Warbington Constr., Inc. v. Franklin Landmark, L.L.C., 66 S.W.3d 853 (Tenn.Ct.App.2001).