author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Isaac JONES.
    No. 2014-KA-0014.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|/The State of Louisiana seeks a review of the trial court’s ruling that quashed the indictment filed in this case. Because we find the trial court erred in quashing the indictment, we reverse and remand the case for further proceedings.

On August 29, 2013, the grand jury returned a bill of indictment that charged Isaac Jones with the following charges: (1) the February 24, 2013 attempted second degree murder of Orlando Richmon; (2) the April 23, 2013 second degree murder of Orlando Richmon; (3) the April 23, 2013 second degree murder of Desmond Bell; and (4) the April 23, 2013 attempted second degree murder of Daymond Harris. Although the case was originally allotted to Section D, it was reallotted to Section A to follow various other cases, including case # 517-161, where Jones was charged with one count each of second degree murder and attempted second degree murder. Jones appeared for arraignment on October 15 and pled not guilty to the charges. He also orally moved to quash the indictment, indicating that he would file a written motion, and the court set a hearing for October 18. Jones filed his written motion on October 17. On October 18, the 12court granted the motion to quash. The State objected and moved to appeal this ruling, which the court granted.

The facts of the underlying offenses are not germane to the issue raised in this appeal.

In State v. Hall, 2013-0453, pp. 11-12 (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39, this Court set forth the proper standard of review:

To summarize, this court in reviewing a motion to quash involving solely a legal issue, such as presented in the instant case, applies a de novo standard of review. State v. Guillott, 120652, p. 4 (La.App. 4 Cir. 2/20/13), — So.3d-, - [2013 WL 633093] (citing State v. Schmolke, 12-0406, pp. 2-4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298-99). In cases involving other types of motions to quash involving factual determinations— such as speedy trial violations and nolle prosequi dismissal-reinstitution cases— this court applies an abuse of discretion standard. [State v.] M.C., 10-1107 at p. 10, 60 So.3d [1264] at 1270 [ (La.App. 4 Cir.2011) ]; see also State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3 (explaining that “[i]n reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion”); State v. Love, 003347, pp. 910 (La.5/23/03), 847 So.2d 1198,1206 (“[bjecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion”).

Procedural Claim: Use of Motion to Quash

The State first argues that the defendant could not raise his objection to the indictment via a motion to quash. In support, the State cites La.C.Cr.P. art. 532, which sets forth the general grounds for a motion to quash, which includes subpart |⅞(2): “The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII.” The State notes that the article upon which the defendant based his motion to quash was La.C.Cr.P. art. 383, which is not included in Title XIII. The State does not mention, however, La. C.Cr.P. art. 533, that provides special grounds to quash a grand jury indictment, including: “(5) The indictment was not indorsed “a true bill,” or the endorsement was not signed by the foreman of the grand jury.” While this subpart does not include the failure to return the indictment in open court, the two failures specifically mentioned in the subpart both concern deficiencies in the return of the indictment, both of which are also listed in La. C.Cr.P. art. 383.

As this court noted in State v. Marcelin, 2013-0893, pp. 3-4 (La.App. 4 Cir. 12/18/13), 131 So.3d 427, 430:

A motion to quash is “a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge.” State v. Carter, 110859, p. 3 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182 (citing State v. Byrd, 96-2302, p. 18 (La.3/13/98), 708 So.2d 401, 411; State v. Rembert, 312 So.2d 282, 284 (La.1975)). See also State v. Clark, 121296, p. 3 (La.5/7/13), 117 So.3d 1246, 1249. “All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.” La.C.Cr.P. art. 531.

The claim raised by the defendant was an attack on the indictment itself, a pretrial plea that did not go to the merits of the case. Moreover, the defendants in several of the cases that considered the issue raised in this case, the lack of showing that the indictment was returned in open court, raised the issue via motions to quash the indictment. Thus, the State’s procedural claim has no merit.

LThe Merits of the Motion to Quash

The defendant orally moved to quash the indictment at his arraignment. Two days later he filed his written motion, wherein he merely alleged that the indictment was defective in that it failed to comply with La.C.Cr.P. art. 383. In support, it merely listed three cases from the 1800s.

At the hearing on his motion the next day, defense counsel argued that the indictment in this case was invalid because there was no notation on the back of the indictment showing that it was returned in open court. The prosecutor responded that a minute entry indicated that the indictment was filed in open court, to which the court asked how the prosecutor defined “open court.” The prosecutor responded that he thought it meant literally-coming into court and making the return on the record. The court then stated: “Can any of you tell me whether this judge had open court for return of indictments? Because I’m told he did not.” Defense counsel then intimated that the minute entry could be incorrect, noting that there have been instances where a minute entry does not accurately reflect what is contained in a transcript. He asserted that the minute entry “conflicts” with the indictment, apparently a reference to the fact that there was no notation on the back of the indictment that it was returned in open court. The court suggested to the prosecutor that he call the ADA who returned the indictment to testify whether it was returned in open court, but the prosecutor indicated that he did not prepare to call any witnesses on this matter because the minute entry reflected that the indictment was returned in open court. The prosecutor also pointed out that the defendant had the burden of showing the indictment was invalid, and the record (the minute entry) indicated that the indictment was returned in open court. The Rcourt found that the indictment was deficient and granted the motion to quash. The State now argues that this ruling was in error.

La.C.Cr.P. art. 383 provides, in pertinent part, that an indictment “shall be returned into the district court in open court.” Although the back of the indictment contains a place for a notation that the indictment was returned in open court, to be signed and dated by the minute clerk, that portion is blank, as are the portions following that pertain to the date of arraignment, any disposition of the case, and sentencing, all also to be signed and dated by the minute clerk. While there has been no disposition or sentencing in this case, the defendant has been arraigned and has pled not guilty, but that event also is not reflected on the back of the indictment.

In its response to the defendant’s motion to quash, the State attached a certified copy of a five-page minute entry that indicated that the indictment in this ease, as well as indictments in other cases, were returned in open court. The minute entry included the name of the minute clerk who prepared the minute entry. Nonetheless, the court found that the certified minute entry was insufficient to prove that the indictment was returned in open court.

Although the defendant cited several cases to support his claim, none of them supports the trial court’s ruling. In State v. Shields, 33 La. Ann. 991 (1881), the Court reversed the defendant’s conviction because there was no indication that the indictment that charged him was returned by the jury in open court. The Court noted that there was no minute entry of the return or any other indication that it was returned in open court, nor was there a minute entry showing that the grand jury was even empanelled. The Court also noted that although it was “not improbable” that the indictment was returned by the jury, the Court could not ^presume that this actually happened. Likewise, in State v. Sandoz, 37 La.Ann. 376 (1885), and State v. Pitts, 39 La.Ann. 914, 3 So. 118 (1887), the Court reversed the defendants’ convictions because there were no entries in the court’s minutes indicating that the indictments were returned in open court.

As argued by the State, these cases are distinguishable from the present case because here there is a certified minute entry indicating that the indictment was returned in open court. The State cites various cases where the Court rejected claims that an indictment was not returned in open court, and in each case, there was a minute entry that convinced the Court to reject the claim. In State v. Turner, 165 La. 657, 115 So. 814 (1928), the record initially failed to show that the indictment was returned in open court. The Court remanded the case for a certified minute entry to reflect whether it was returned in open court, and when the case returned to the Court, the State provided a certified minute entry so stating. The Court found this sufficient to show that the indictment was filed in open court.

In State v. Harvey, 159 La. 674, 106 So. 28 (1925), the defendant moved to quash the indictment because, among other claims, it did not indicate that it was returned in open court. The Court rejected this claim, citing language from State v. Mason, 32 La.Ann. 1018 (1880) and State v. Onnmaeht, 10 La.Ann. 198 (1855) to the effect that a court may presume that an event happened if it was contained in a minute entry. In Onnmaeht, at p. 1, the Court stated: “The clerk enters on the minutes only what is done while the court is in session, and only such proceedings as ought to appear of Record. No entry would be made on the minutes of what did not transpire in open court; and to presume it possible that the grand jury did not, as a body, return the indictment in this case, and in open Court, would be reversing directly the maxim, ‘omia rite acta.’ ” Relying on this “presumption of regularity,” [ 7the Harvey Court found that the minutes provided in the record countered the defendant’s claims “beyond all question and cavil.” Haney, 159 La. at 683, 106 So. at 31. Likewise, in Mason and Onnmaeht, the Court found that notations in the minutes showed that the indictments were returned in open court. See also State v. Williams, 35,911 p. 13 (La.App. 2 Cir. 9/18/02), 828 So.2d 180, 188-189 (where the court rejected a similar claim because the minutes and the transcript indicated that the indictment was returned in open court). By contrast, in State v. Logan, 104 La. 254, 28 So. 912 (1900), the Court upheld a similar claim because the minutes did not reflect that the indictment was read in open court.

Here, the State presented a certified minute entry that showed that the indictment was returned in open court. As per the cases cited above, this was sufficient to counter the defendant’s claim to the contrary. As noted by the State, the defendant as the mover in the motion to quash had the burden of showing that it was not filed in open court, and his mere assertion that the minute entry may be in error did not meet this burden. Although the trial court stated that the prosecutor should have called a witness to affirm the accuracy of the minute entry, the State could reasonably rely on the presumption of regularity shown by the certified minute entry, based on the cases cited above. The court’s statement that it had been “told” that the indictment may not have been returned in open court was not backed by anything placed on the record, and its genesis is unknown. Without any showing by the defendant that the minute entry was incorrect, the prosecutor could rely on its accuracy. Absent this showing, the trial court had no basis to quash the indictment. Thus, we find the trial court erred in quashing the indictment.

| ^Accordingly, for the above reasons, the trial court’s October 18, 2013 ruling quashing the indictment is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

      . The court also quashed the indictment in case #517-161 and granted the State’s motion for appeal. The record in case # 517-161 was just lodged in this court as 2014-KA-0280.


source: Caselaw Access Project

author: MADELEINE M. LANDRIEU, Judge. BAGNERIS, J.,

license: Public Domain

text:
    James Kevin JOHNSON and Denise Johnson. v. MIKE ANDERSON’S SEAFOOD, INC., Mike Anderson’s Seafood of New Orleans, Inc. and United Fire Group Insurance Company.
    No. 2013-CA-0379.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2014.

      James F. Scott, III, Richard T. Gallagher, Jr., Guillory Scott & Associates, LLC, Metairie, LA, for Plaintiff/Appellee.
    Stephen N. Elliott, Howard B. Kaplan, Michael W. Robertson, Bernard Cassisa Elliott & Davis, a PLC, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

11 Defendants in this personal injury action, Mike Anderson’s Seafood of New Orleans, Inc., Mike Anderson’s Seafood, Inc., and Lafayette Insurance Company (collectively, “Mike Anderson’s”), appeal the jury trial verdict in favor of plaintiffs, James and Denise Johnson (“the Johnsons”). For the reasons that follow, we affirm the trial court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mike Anderson’s contracted with Aquatic Specialties, Inc. (“Aquatic Specialties”) for the care and maintenance of aquariums located behind the bar in its New Orleans restaurant. On August 20, 2004, James “Kevin” Johnson, an employee of Aquatics Specialties, was injured while tending to one of the aquariums. At the time of the accident, Mr. Johnson was doing his weekly cleaning of the aquariums, as he had been doing for approximately ten years.

The aquariums were encased in wooden cabinets with large brass portholes as doors. The portholes weighed approximately fifty pounds each. The wood front, including the porthole, was attached to the bottom of the cabinet by hinges. The wood front was attached near the top by latches and was also attached to the wall by chains which ran from the back of the wood front behind the latches to the wall. |2To open the cabinet in order to gain access to the aquarium, the latches were unlatched and the wood front and porthole were lowered, like a drawbridge.

To clean the aquarium, Mr. Johnson had to lower the wood front and porthole, step up on a stepladder, and reach inside of the aquarium. On this day, after lowering the door of one of the cabinets, Mr. Johnson stepped off the stepladder with one foot, kept one foot on the stepladder, and reached for his topis. As he was reaching for his tools, the porthole and frame became detached from the cabinet, swung out, and hit him in the right shoulder and neck, causing his injuries. While the frame was detached, Mr. Johnson saw that the frame had been attached to the cabinet by finishing nails.

Mr. Johnson filed a workers’ compensation claim against his employer, Aquatic Specialties. Aquatic Specialties then sent a notice of subrogation to Mike Anderson’s. After receiving the notice, Mike Anderson’s insurer, Lafayette Insurance Company, assigned the claim to its adjuster, Mark Leblanc. As part of this investigation, Mr. Leblanc interviewed the office manager of Mike Anderson’s and two employees who were present on the day of the accident.

In August of 2005, the Johnsons filed suit against Mike Anderson’s and, during the course of the litigation, sought to discover the contents Lafayette’s claim file. Mike Anderson’s objected to this discovery request. Subsequently, the Johnsons filed a motion to compel, specifically seeking an order compelling Lafayette’s investigator, Mr. Leblanc, to respond fully to questions regarding his investigation of the accident. Following a hearing on this motion, the trial judge ordered Mike Anderson’s to produce under seal “any and all material, including but not limited to ‘Liability Cap Report(s)’ and Claim File Notes,’ which in any way reflected communication between Mr. Leblanc and Mr. Copping” for an in | ^camera inspection. Mike Anderson’s applied for supervisory writs seeking review of this judgment. This Court denied the writ on the basis that the trial court did not abuse its discretion. After conducting the in camera inspection, the trial judge ordered that the documents be released to the Johnsons. Mike Anderson’s again applied to this court for supervisory review and was granted a stay by the trial court while its writ was pending. This Court denied the writ without reasons. Mike Anderson’s then produced the report.

Prior to trial, Mike Anderson’s filed a motion in limine to exclude the Liability Cap Report from being admitted into evidence. The trial judge granted the motion in part, excluding information regarding coverage and reserves in the document; denied the motion in part, allowing plaintiff to question representatives of Lafayette regarding its investigation; and deferred in part, postponing ruling upon the admissibility of the remainder of the document and specifically, of the notes contained in the document regarding Lafayette’s legal liability. Just before the beginning of trial, Mike Anderson’s again objected to the use of the document based on its prior discovery motions and the motion in limine. The trial court denied the objection, specifically referencing the prior writs, which it found to be the law of the case.

During the trial, the plaintiffs offered to introduce the Liability Cap Report into evidence during the direct examination of Mr. Leblanc. Mike Anderson’s objected to the introduction of the document, and the objection was overruled. At the conclusion of the trial, the jury found in favor of the Johnsons and awarded |4damages. The trial judge made the jury’s findings the judgment of the court on December 6, 2012. Mike Anderson’s appeals this judgment.

ISSUES

In this appeal, Mike Anderson’s asserts four assignments of error:

1. The trial court committed legal error in allowing into evidence internal liability reports, internal status reports, and internal claims file notes.
2. The jury committed legal error in finding that a defect existed.
3. The jury committed legal error in finding that plaintiffs proved knowledge of a defect.
4. The trial court committed legal error in finding liability on the part of Mike Anderson’s Seafood, Inc.

DISCUSSION

I. ADMISSIBILITY OF INSURANCE INVESTIGATOR’S FILE

Mike Anderson’s contends that the trial court erred by allowing into evidence the internal liability report/ claim file of Lafayette’s investigator, Mr. Leblanc. Mike Anderson’s argues: (1) the report is work product containing opinions on liability; (2) the report is work product because it was prepared in anticipation of litigation; (3) the report is hearsay; and (4) the prejudicial effect of the report outweighs its probative value. The first two reasons cited by Mike Anderson’s, which concern the report being work product and being prepared in anticipation' of litigation, are actually reasons the report should have been excluded from discovery rather than reasons it should not have been admitted at trial. Discoverability and admissibility are two different issues. In essence, Mike Anderson’s argues, at least in part, that because the report should not have been | ¡¡discoverable, it should not have been admitted as evidence. We first address this argument.

We find that the trial court erred by admitting the report on the basis that this Court’s prior writ denials were the law of the case. First, the writ applications were not related to the admissibility of the report, but to its discoverability. Second, even if any of the writ applications had addressed the admissibility of the report, this court’s writ denial would not be law of the case. “A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction and does not bar consideration of the merits of the issue in which supervisory review has been denied when an appeal is taken from a final judgment.” State v. Whitton, 99-1958, p. 16 (La.App. 4 Cir. 9/27/00), 770 So.2d 844, 853 (citing State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162 and State v. Fontenot, 550 So.2d 179 (La.1989)). See also: State v. Williams, 2005-318, p. 3 (La.App. 5 Cir. 1/17/06), 921 So.2d 1033, 1035; State v. Thibodeaux, 97-1636, p. 11 (La.App. 3 Cir. 11/18/98), 728 So.2d 416, 422. The denial of a writ by an appellate court is nothing more than the appellate court declining to exercise its supervisory jurisdiction. An appellate court cannot affirm, modify or reverse a decision by a lower court without granting an application for supervisory review. The Louisiana Supreme Court addressed this very issue in Bulat v. Intracoastal Tubular Services, Inc., 2002-1035(La.6/14/02), 817 So.2d 1149, when it stated: “[H]aving declined to exercise its supervisory jurisdiction by denying the | fiwrit, the court of appeal was without jurisdiction to affirm, reverse or modify the judgment of the trial court.” In a subsequent decision, the Supreme Court reiterated:

The court of appeal erred in holding its earlier writ denial resolved the issue presented on appeal. In Bulot v. Intra-coastal Tubular Services, Inc., 02-1035 (La.6/14/02), 817 So.2d 1149, we held that once a court of appeal declines to exercise its supervisory jurisdiction by denying the writ, the court was without jurisdiction to affirm, reverse or modify the judgment of the trial court. Thus, any language in the court of appeal’s earlier writ denial purporting to find no error in the trial court’s ... ruling is without effect.

Davis v. Jazz Casino Co., L.L.C., 2003-0276 (La.6/6/03), 849 So.2d 497, 498.

With this frame of reference, we consider the merits of Mike Anderson’s argument that the insurance investigator’s report was improperly admitted because it never should have been discovered in the first place. Mike Anderson’s argues that the report is work product because it contains opinions on liability and was prepared in anticipation of litigation. We agree. Louisiana Code of Civil Procedure article 1424 provides:

The trial court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusion, opinions, or theories of an attorney or an expert.

Pursuant to article 1424, prior to allowing discovery, the trial court was required to determine whether the information contained in Mr. Leblanc’s notes was prepared in anticipation of litigation, and if so, whether the denial of production would unfairly prejudice the Johnsons. The party seeking to avoid |7discovery of documents on the grounds that they were prepared or obtained in anticipation of litigation or in preparation for trial bears the burden of proving that the exception applies. Simmons v. Transit Management of Southeast Louisiana, Inc., 2000-2530, p. 3 (La.App. 4 Cir. 2/7/01), 780 So.2d 1074,1077. The trial court has the discretion to order the production of a writing prepared in anticipation of trial if it is convinced that the denial of production “will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice.” Hodges v. Southern Farm Bureau Casualty Insurance Company, 433 So.2d 125, 131 (La. 1983).

The document at issue here is the Liability Cap Report prepared by Mr. Leblanc following the receipt of notice for subrogation in a worker’s compensation claim. The report includes the adjuster’s opinion regarding the legal liability of the insured, what the adjuster believed the law of duty to be, and summaries of conversations Mr. Leblanc had with witnesses. The report also included the amount of insurance available to Mike Anderson’s and the amount reserved by Lafayette to pay the claim. This report is clearly a writing prepared by a party’s agent in anticipation of litigation.

Even though a document was obtained or prepared in anticipation of litigation or in preparation for trial, the party seeking discovery may be entitled to it in certain circumstances. That party must prove that he has a substantial need for the materials in the preparation of his case, and that he is unable to obtain a substantial equivalent of the materials by other means without undue hardship. Ogea v. Jacobs, 344 So.2d 953, 957 (La. 1977). Under this standard, the Johnsons failed to show that they would have been unfairly prejudiced by the denial of the document.

lain Ogea, the trial judge denied the plaintiffs motion for production of a job-site executive’s written accident report that contained data obtained from other employees as well as the executive’s opinions as to the basic cause of the accident. Id. at 955. During his deposition, the jobsite executive had several lapses of memory. Id. at 944-45. In addition to the executive’s lapses of memory, the plaintiff in the case had suffered a traumatic brain injury which left him unable to remember the events and facts surrounding the accident. Id. at 958. Finding for the plaintiff, the Louisiana Supreme Court held:

[T]he denial of the plaintiffs request for production of the accident report, containing as it does the results of Davis’ almost contemporaneous investigation into the causes, facts, and circumstances surrounding the plaintiffs injury, would unfairly prejudice the plaintiff in the preparation of his case, in view of his present inability, because of the passage of time and Davis’ lapses of memory, to obtain equivalent data equally likely to lead to the discovery of admissible evidence.

Id. at 959.

Similarly, in Simmons v. Transit Management of Southeast Louisiana, Inc., 2000-2530, pp. 4-5 (La.App. 4 Cir. 2/7/01), 780 So.2d 1074, 1077-78, we found that the plaintiff had shown that she would be unfairly prejudiced by the denial of production of an investigative report concerning her husband’s accident because her husband had died after the report was prepared but before the trial.

In the case before us, however, the record fails to demonstrate that the Johnsons made a showing of the level of unfair prejudice or injustice that was present in Ogea and Simmons. The Johnsons argue that they had a substantial need for the investigator’s file because they would be unfairly prejudiced had they not been able to know what Mr. Copping had said about the accident shortly after it happened. We find that the Johnsons did not meet their burden of proving ^substantial need or hardship. Mr. Johnson had his own independent recollection of the events. Mr. Copping was not an eyewitness to the accident, although he came upon the scene shortly after the accident occurred. Mr. Copping and the Lafayette investigator, Mr. Leblanc, were deposed. Both were available to and did, in fact, testify at trial.

Because we find that the trial court abused its discretion by ordering the production of the insurance investigator’s report during discovery, we also conclude that the admission of the report into evidence was error. Our next inquiry is to determine whether this error was harmless.

An error is harmless when the verdict is “surely unattributable to the error.” State v. .Williams, 05-318, p. 4 (La. App. 5 Cir. 1/17/06), 921 So.2d 1033, 1036. “The test to be applied is whether the error was likely to have affected the final outcome of the trial so that it is reversible error instead of mere harmless error.” Smith v. Travelers, Ins. Co., 418 So.2d 689, 695 (La.App. 4th Cir.1982) (Garrison, J., dissenting), rev’d on other grounds, 430 So.2d 55 (La.1983).

We find that the error was harmless in the present case because essentially the same information found in the report was available to the jury through depositions and the testimony of the witness at trial. The synopsis contained in Mr. Leblanc’s internal report was not inconsistent with the recorded statement Mr. Copping gave to Mr. Leblanc, Mr. Copping’s deposition testimony, or, ultimately, his trial testimony. In the Liability Cap Report, Mr. Leblanc wrote,

[Mr. Copping] is aware that one aquarium did have a problem with the front case coming apart from the wall if it was dropping down hard. If it was eased down with your hand, it did not have a problem |infalling. He also said that he is certain that the claimant would also be aware of this.

Mr. Leblanc also wrote that, according to his knowledge at that point in time, Mike Anderson’s would have “some liability for this injury.” He expressly noted that there was a “hidden defect” and that at least one employee was aware of it. Mr. Leblanc explained that “there was a problem with the aquarium cover coming down because the nail would shake loose from a piece of wood when you would let the cover fall.” In a file status update included in his report, Mr. Leblanc wrote that he had spoken to Mr. Copping and that Mr. Copping was “all too eager to say that there is a defect in that aquarium cover and that everyone knew it.”

Mr. Leblanc took a recorded statement from Mr. Copping in October 2008. In this statement, Mr. Copping said that he did not remember the porthole falling down and striking anyone prior to this incident, nor did he remember the porthole coming completely off the chains and swinging down on any particular occasion. Mr. Copping told Mr. Leblanc that when he arrived on the scene of the accident, he could see that the frame was attached with smooth nails. He also stated that at some point after the accident, Mike Anderson’s repaired the frame and reattached it with screws.

During his deposition, Mr. Copping stated, “[T]he weight of the door ... the chains and bolts would not stop the thing from dropping. They would hold it in its place once you let it down, but it wouldn’t — if it just came down, it wouldn’t stop.” Mr. Copping stated that “it was a little risky [to open the porthole cover]. If you ... didn’t know how much the door weighed and you just went up there and just, you know, unlatched the ends of it.” When questioned as to whether he was aware of any instances in which the latches had given way and the drawbridge or . In porthole had fallen, Mr. Copping answered that he was not aware of any instances, but that when he was behind the bar he always made sure that the latches were locked. Again, this deposition testimony is essentially consistent with what Mr. Leblanc summarized in his report.

At trial, Mr. Copping testified that prior to the accident, while he never saw the frame fall off the front of the aquarium, “it was rumored that one of them did come down” and it was rumored to have hit someone.

Mr. Leblanc’s report does not contain any statements that Mr. Copping refuted in his recorded statement, his deposition testimony, or his testimony at trial. Mr. Copping testified that he was aware that a person had to be careful when lowering the porthole because it was heavy. Throughout Mr. Leblanc’s investigation, Mr. Copping was consistent in stating that he did not know of a specific prior incident when the porthole had fallen down and hit someone, saying only that there was a rumor of such an event having occurred prior to his employment at Mike Anderson’s.

Prior to admitting the Liability Cap report, the trial judge redacted from it the reserves and the amount of insurance coverage available to Mike Anderson’s for this claim. However, the court did not redact from the report Mr. Leblanc’s conclusion that Mike Anderson’s would have some liability for the injury. We find this to be a legal error prejudicial to the defendants. However, weighing all of the evidence considered by the jury, we find the verdict to be unattributable to the error. Accordingly, we conclude that the error was harmless.

II. JURY’S FINDINGS

112Mike Anderson’s contends that the jury erred in finding that the plaintiffs proved the existence of a defect of which Mike Anderson’s had knowledge.

Under Louisiana Civil Code article 2317.1, the owner or custodian of a building has a duty to keep its property free of vices or defects. To establish negligence under this article, the plaintiffs must prove the following: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (8) that the defendant failed to exercise reasonable care. Keller v. Monteleon Hotel, 2009-1327, p. 4 (La.App. 4 Cir. 6/23/10), 43 So.3d 1041, 1043.

An appellate court’s standard of review of a jury’s factual findings is subject to the manifest. error standard of review. Green v. K-Mart Corp., 03-2495, p. 3 (La.5/25/04), 874 So.2d 838, 842. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State Dep’t of Pub. Safety & Con-., 2001-2123, p. 13 (La.9/4/02), 825 So.2d 1134, 1144. In order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding, and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id., p. 14, 825 So.2d at 1144.

A. The existence of a defect

Considering the evidence, we find that the jury did not commit manifest error in finding that a defect existed. Mr. Johnson testified that the porthole frame was attached to the cabinet by finishing nails and that the porthole hinges were not 1 ^attached to the cabinet. Mr. Copping testified that because the porthole was so heavy, the frame could become detached from the case. He stated that one had to lower it slowly to prevent it from pulling off of the wall completely.

In addition to the factual testimony, the Johnsons presented the testimony of Mr. Roy Carruba, an expert in the field of civil and structural engineering. Mike Anderson’s did not object to the court’s qualification of Mr. Carruba as an expert at trial. However, they allege that Mr. Carruba only offered his own personal opinions and conclusions, rather than objective standards necessary for the finding of a defect. See Carrier v. City of Amite, 2010-0007 (La.10/19/10), 50 So.3d 1247; Serou v. Touro Infirmary, 2012-0089 (La. App. 4 Cir. 1/9/13), 105 So.3d 1068. We disagree.

An essential element for liability is that the thing must have a ruin, vice, or defect. La. C.C. art. 2317.1. A defect in a thing exists when it is of the nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Lasyone v. Kansas City Southern R.R., 2000-2628, pp. 14-15 (La.4/3/01), 786 So.2d 682, 694.

Mr. Carruba based his opinion on his experience and expertise as a civil engineer, photographs of the aquarium, and the testimonies of Mr. Johnson, Mr. Copping, and Dr. Jerry Householder, the defendants’ expert, regarding the construction of the porthole. Mr. Carruba opined that finishing nails should not have been used in a frame that was built to support a fifty-pound glass and brass porthole door. He testified that the smoothness of finishing nails would cause them to pull out more easily from the wood than would nails with ridges or screws. |uHe also explained that finishing nails do not have heads, and that it is the head of a nail or wood screw that prevents it from being pulled through the wood. He specifically stated that the use of finishing nails on a fifty-pound door is a defect because finishing nails are not strong enough to keep the porthole frame from falling, and therefore the continual motion of opening and closing would eventually lead to the frame becoming detached from the wall. Mr. Carruba testified that the defect could have been corrected by attaching the frame to the cabinet with wood screws rather than finishing nails.

Mr. Carruba also testified that the fact that the hinges were not attached to the wood base and that the chains were not of the same length presented “an imminent danger of failure.” He explained that term by stating: “It was a failure mechanism that was going to present itself at some point in time.” He testified that the connecting of a structural element using an architectural fastener constituted a defect. Mr. Carruba concluded that, in this instance, the connection had loosened over time, and eventually it had failed.

Mr. Householder concluded that the use of nails to attach the aquarium frame to the wall was not a defect and satisfied the relevant building code. Although the conclusions of the defendants’ expert, Dr. Householder, differed from those of Mr. Carruba, this Court has found that “[w]here the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is most credible.” Schlesinger v. Herzog, 95-1127, p. 12 (La.App. 4 Cir. 4/8/96), 672 So.2d 701, 710 (citing Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990)). In finding for the Johnsons, the jury chose to credit the testimony of Mr. Carruba over that of Dr. Householder. We find no manifest error in the jury’s finding of fact as to the existence of a defect.

|1SB. Knowledge of the defect

Mike Anderson’s also contends that the Johnsons did not meet their burden of proving knowledge of the defect, arguing that there was no testimony that Mike Anderson’s had prior knowledge of the use of the finishing nails. We do not find that the jury erred manifestly in this respect.

Although both experts testified that the use of the finishing nails would not have been obvious to the building occupant, Mike Anderson’s does not cite to any authority which states that the plaintiff must prove the defendant has detailed knowledge of the specific problem causing the defective condition. Only knowledge of the condition, not the cause of the condition, is an essential element for finding liability.

Mr. Copping, who had worked at Mike Anderson’s for twelve years and was responsible for feeding the fish, testified that he knew that the porthole had to be lowered a certain way to prevent it from detaching from the wall. Mr. Copping testified that he had heard a rumor that one of aquarium covers had fallen down and had hit someone. In his deposition, Mr. Copping acknowledged that it was risky to open the aquarium door and indicated that because of the door’s weight, the chains and bolts would not hold it if it came down quickly, as opposed to someone slowly and carefully lowering it. He also stated that because of this knowledge, he always made sure the latches were locked when he was behind the bar. In reviewing the record, we cannot conclude that the jury committed manifest error in finding that Mike Anderson’s had knowledge of a defective condition.

III. Liability of Mike Anderson’s Seafood, Inc.

Mike Anderson’s Seafood, Inc. contends that the jury erred in finding liability on its part because the actual lessee of the building where the incident 11fioccurred was its codefendant, Mike Anderson’s Seafood of New Orleans, Inc. The crux of this argument is that Mike Anderson’s Seafood, Inc., had no responsibility for the New Orleans location and was not the custodian of the aquarium cabinet door that failed.

At trial, Mike Anderson’s Seafood, Inc. failed to present any evidence that it should be singled out from its co-defendants. The three defendants did not differentiate between themselves at trial. They shared the same counsel, who referred to all defendants collectively as “Mike Anderson’s.” Although Mike Anderson’s Seafood of New Orleans, Inc. was the lessee of the Bourbon Street location where the accident occurred, Mike Anderson’s Seafood, Inc. was the insured on the Lafayette Insurance policy. The Lafayette policy describes three premises, including the Bourbon Street location. Mike Anderson’s was operated as one entity, with a home office in Baton Rouge and three restaurant locations.

In the percentages of fault category on the jury verdict form, the defendants are listed as one defendant: “Mike Anderson’s Seafood, Inc. and/or Mike Anderson’s Seafood of New Orleans, Inc.” Defendant’s counsel did not object to the verdict form. This court generally does not consider on appeal issues that were not before the trial court. We therefore find that defendants have waived consideration of this issue on appeal.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

BAGNERIS, J.,

concurs.

hi concur in the result reached by the majority.

      . Mr. Copping was a bartender employed by Mike Anderson’s when the accident occurred. He was present at the restaurant when the accident took place, but was not an eyewitness.

      . The document admitted into evidence, entitled "Liability Claim Report,” included the contents of Mr. Leblanc's claim file except for the portions relating to coverage and reserves that the trial court had ordered redacted.

      . See La. C.C.P. art. 1424.

      . The subject of the first writ application was the propriety of an in camera inspection of the report/file by the trial court, and the subject of the second writ application was its discoverability (the trial court's ruling that the report, as redacted, be produced in response to plaintiffs' discovery request). See Johnson v. Mike Anderson’s, 2011-C-0075 (La.App. 4 Cir. 2/16/11) (unpub), and Johnson v. Mike Anderson’s, 2011-C-0721, (La.App. 4 Cir. 7/27/11) (unpub).

      . In view of this conclusion, we pretermit consideration of the appellant’s additional arguments regarding whether the report was inadmissible as hearsay and/or because its probative value was outweighed by its prejudicial effect.

      . We reject Mike Anderson’s argument that we should review the jury's findings de novo because of an alleged legal error. The alleged failure of the plaintiffs to present any evidence that an unreasonable condition existed on the premises would not constitute a legal error.

      . Prior to trial, defendant Mike Anderson’s Seafood, Inc. filed, and then withdrew, a motion for summary judgment seeking its dismissal.


author: LAMAR, Justice, KITCHENS, Justice,

text:
    Joe H. COTTON a/k/a Joe Cotton a/k/a Joe Henry Cotton v. STATE of Mississippi.
    No. 2012-CT-00705-SCT.
    Supreme Court of Mississippi.
    June 19, 2014.
    Rehearing Denied Aug. 21, 2014.

      Office of State Public Defender by George T. Holmes, Wilbert L. Johnson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. Joe Cotton was convicted of murder in the death of Fannie Lee Burks. He appeals from his conviction, challenging the sufficiency and the weight of the evidence. Finding no error, we affirm Cotton’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts are taken from the Court of Appeals’ opinion:

On April 9, 1995, [Fannie Lee] Burks’s body was found in her apartment in Tunica, Mississippi. She had been shot three times, and some of her jewelry was missing. It was determined her death occurred after 12:01 a.m. There was no indication of forced entry, no eyewitnesses to the crime, and no weapon recovered.
At the time of the original investigation, fingernail scrapings were taken as evidence. In 2008, the cold case was reviewed by the Tunica County Sheriffs Office, and the fingernail scrapings, which had been stored in the property room of the Tunica County Sheriffs Office, were sent for DNA analysis. A DNA analyst found the right-hand fingernail scrapings contained DNA, which can remain present “for years.” The DNA profile was found to be “a mixture of more than one person including an unknown male[,] and Fannie Burks could not be excluded as a contributor” to the sample. The results were compared to DNA profiles in a national database, and Cotton was found to be a potential match. The sheriffs office obtained an oral swab from Cotton through a search warrant and compared it to the DNA analysis results. Since the initial DNA analysis used all of the scrapings sample, there was no DNA sample left to re-analyzed. The DNA profile contained in the fingernail scrapings was found to be consistent with that of Cotton.
Prior to her death, Burks had worked as a cook at Nickson’s Café (a/k/a Nick-son’s Disco Club) in downtown Tunica. Burks’s good friend, Ms. Willie Nickson, testified at trial that on the afternoon of April 8, 1995, she stopped by to see Burks at the café. They made plans to eat lunch the next day. As they spoke, Nickson noticed Burks was putting rings on her fingers. Nickson also helped Burks put on a herringbone necklace. The next day, after Nickson called Burks’s apartment and got no answer, Nickson and a friend went to Burks’s apartment. Burks’s automobile was in the parking lot, but Burks did not answer their knocks on the door and window. The apartment manager unlocked the door, and Burks’s body was discovered. According to Nickson, Burks was wearing the same dress as the day before, but she did not have on the necklace, and all but one ring was missing from her fingers.
Deputy Sheriff Marco Sykes testified that when he was called to the scene of the murder, he found Burks’s body lying face down on the floor of her apartment. The television was on, but the telephone was off the hook. An empty jewelry box was found in Burks’s bedroom at the foot of her bed. Sykes stated “[i]t appeared that someone had been in the attic.” The attic door in the hallway was pushed up, and there was a chair and several pillows underneath the attic stair opening. Insulation that matched the insulation in the attic was on the kitchen floor, and pieces of hair were found in the kitchen sink. There was no indication of forced entry.
Dr. Steven Hayne performed Burks’s autopsy. He took fingernail scrapings from Burks’s right and left hands and submitted this evidence to investigators. He noted that Burks was wearing only one earring, and no other jewelry was on her body. Dr. Hayne testified at trial that the three gunshot wounds— one to her front abdomen, one to her left flank, and one to the back of her head— were all close contact wounds and were all lethal.
Sheriff Kalvin Hamp testified that ... [i]n [hi]s initial statement to police, [Cotton] repeatedly denied having seen Burks the night of her murder; however, he later admitted that he had been to the club where Burks worked on April 8, 1995, and Burks had waited on him. He bought a sandwich, which Burks passed to him in a brown paper bag- Cotton also told investigators that he had been to Burks’s apartment on two separate undisclosed prior dates — to return some stolen property of hers and to help move furniture into her apartment. In addition, Cotton’s mother lived in the same apartment complex as Burks.
The only direct evidence tying Cotton to Burks’s murder was the presence of his DNA under her right-hand fingernail scrapings. William Jones, a forensic scientist qualified as an expert in the field of forensic DNA analysis, testified that Cotton could not be excluded as a contributor of DNA found in fingernail scrapings taken from Burks during her autopsy. Jones tested thirteen genetic markers from the right-fingernail scrapings of Burks. The genetic profile excluded “greater than 99.99 percent of the Caucasian, African American and Hispanic populations.” The scrapings were a mixture of at least two individuals, one of whom was a male, and that mixture had a DNA profile consistent with Cotton, i.e., he could not be excluded as a contributor. Nor could Burks be excluded as a contributor to the mixture. Jones testified that, in his opinion, the DNA was a mixture of Cotton’s and Burks’s, to “a very high degree of [scientific] certainty.” Jones admitted that DNA could be transferred between individuals by casual contact. Cotton did not testify at trial; nor did he put on any witnesses in his defense. After the three-day trial, the jury returned a guilty verdict [and][t]he trial court sentenced Cotton to life [imprisonment]. [Cotton] filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied.

Cotton timely appealed his conviction, challenging the sufficiency and the weight of the evidence. The Court of Appeals affirmed, and this Court granted Cotton’s petition for certiorari. Finding no error, we affirm Cotton’s conviction and sentence.

LAW AND ANALYSIS

1. Sufficiency of the Evidence

¶ 3. Since the only connection between Cotton and Burks’s murder is the presence of Cotton’s DNA under Burks’s fingernails at the time of her death, this is an entirely circumstantial-evidence case.

When the State’s case is based entirely upon circumstantial evidence the State is required to prove the defendant guilty not only beyond a reasonable doubt but to the exclusion of every reasonable hypothesis consistent with innocence. Circumstantial evidence need not exclude every “possible doubt” but only every other “reasonable” hypothesis of [innocence], A mere fanciful or farfetched or unreasonable hypothesis of innocence is not sufficient to require an acquittal.... When reviewing a jury verdict of guilty we are required to accept as true all the evidence favorable to the State, together with reasonable inferences arising therefrom, to disregard the evidence favorable to the defendant, and if such will support a verdict of guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, then the jury verdict shall not be disturbed.

¶ 4. Cotton claims he should be acquitted because the “[e]vidence that a very small[,] unknown quantity of Joe Cotton’s DNA was found under the fingernails of Ms. Burks’[s] right hand cannot, without more proof, support a reasonable circumstantial conclusion that Mr. Cotton murdered Ms. Burks.”

¶ 5. While no Mississippi case bears directly on the sufficiency of DNA evidence alone, other jurisdictions have affirmed convictions based solely on DNA evidence. See State v. Toomes, 191 S.W.3d 122, 129-31 (Tenn.Crim.App.2005); Roberson v. State, 16 S.W.3d 156, 169-71 (Tex. Ct.App.2000); Rush v. Artuz, 2009 WL 982418, *11 (E.D.N.Y. April 10, 2009); State v. Hunter, 169 Ohio App.3d 65, 861 N.E.2d 898, 901 (2006); State v. Abdelma-lik, 273 S.W.3d 61, 66 (Mo.Ct.App.2008); see also Maryland v. King, — U.S.-, -, 133 S.Ct. 1958, 1964, 186 L.Ed.2d 1 (2013) (emphasizing that DNA provides “unparalleled accuracy” and is “far superi- or” to fingerprinting with regard to identifying criminals). In accordance with those decisions, we conclude that, when DNA material is found in a location inconsistent with casual contact and absent a “reasonable hypothesis consistent with innocence,” DNA evidence alone can be sufficient to support a conviction. We caution that we are not announcing a principle that DNA evidence alone will always be sufficient to support a conviction. Every conviction relying on DNA evidence must stand on its own merits.

¶ 6. Here, an expert in forensic DNA analysis testified that “[t]he genetic profile for the DNA donor of the right fingernail scrapings [from Burks] excludes greater than 99.99 percent of the Causea-sian, African-American and Hispanic populations,” but that “Joe Cotton cannot be excluded as being a contributor to the mixture of the scrapings.” Cotton does not dispute that his DNA was found under Burks’s fingernails. Rather, he proffers the following “hypothesis” as to how it got there:

Cotton told investigators that Ms. Burks had waited on him in Nickson’s café. She could have come into contact with him then. Just as likely, she cleaned up after him. If so, she came into contact with his eating utensils and napkin, both of which would have had Mr. Cotton’s DNA on them. Ms. Burks could have picked up money handled by Cotton either as payment for the food or a tip and collected his DNA then.

In short, Cotton argues that Burks could have gotten his DNA under her nails through casual contact when she waited on him at the café, and, therefore, his conviction must be reversed and rendered because this is a reasonable hypothesis consistent with innocence.

¶ 7. A hypothesis must be based on evidence and the reasonable inferences that can be drawn from the evidence. A hypothesis is “[a] supposition based on evidence but not proven; a proposed explanation, supported by evidence, that serves as a starting point for investigation.” Cotton’s argument hinges on Burks touching him, his dishes, or his money at the café. However, there is no evidence that Burks touched Cotton or his belongings. The only evidence that Cotton and Burks interacted at the café came from Sheriff Hamp, who testified that:

A. [Cotton] stated he received the food from Ms. Fannie Burks [the night she was murdered]. He ordered a sandwich and she passed him a brown bag. And I asked him was there a possibility she could have scratched him and stated, um, yes, it was a possibility. Then we asked, “Well, if you were scratched, wouldn’t you have known you were scratched when somebody’s passing you a bag?” He stated, yes, he would have known if he was scratched.
Q. Okay. And so after [Cotton] said he would have known if he was scratched, so did you then ask him if she had ever scratched him?
A. Yes, I did.
Q. What was his answer to that?
A. No.

This testimony does not support an inference of even casual contact. In fact, it negates such an inference, as Cotton said Burks did not scratch him. It also does not provide a basis for Cotton’s argument that Burks cleaned up after Cotton or handled his money. Instead, it merely posits that Burks passed Cotton a brown paper bag several hours before she was murdered.

¶ 8. Cotton also relies on the following testimony from the State’s DNA expert, William Jones:

Q. ... And as far as leaving, a person leaving DNA, if I touched you on your — -just say on your forehead with my hand, would it be likely that I would have your DNA on my hand or under my fingernails?
A. It be likely that — I would say it would be possible. It depends on the circumstances. If it was just a glancing touch, I would say not like- ■ ly. If I’m bleeding, I would say extremely likely.
Q. Okay.
A. If I’m sweating, I would say yes, reasonably likely that from the sweat you got a little bit, a little bit of my DNA on your fingers or something.
Q. On the fingers?
A. Yeah, wherever you touched.
Q. Okay. Would you expect it to be under the nails, in the nail scrapings?
A. Well, if you didn’t actually get your nails on me, I would not expect it. But in my DNA world I wouldn’t say anything is possible but I would want to do a little experiment a few times to see before I would give up on whether it could or could not happen.
Q. [I]f you come in contact with a person or if you come if [sic] contact with a person by a handshake or rubbing of the head or patting on the back. Is it possible that DNA will stay in the fingernails?
A. If the fingernails actually are what is touching, yes. There can be DNA adhering to it if you’re touching somebody with your fingernails, scratching their back or whatever.

However, Cotton’s reliance on this testimony is misplaced. There is no evidence that Burks touched Cotton’s forehead, shook his hand, rubbed his head, or patted his back at the café. And for his reasonable hypothesis to stand, it must be founded in the record evidence and the reasonable inferences that can be drawn from that evidence — not merely supposition about what “could have been.” Because Cotton’s DNA was found under Burks’s fingernails, a circumstance inconsistent with casual contact, and because there is not a “reasonable hypothesis consistent with innocence” to explain its presence, we find the evidence sufficient to support the jury’s guilty verdict. It is not our job as an appellate court to ask whether we believe “that the evidence at trial established guilt beyond a reasonable doubt [but][i]nstead, the relevant inquiry is whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” We find that he or she could. For these reasons, the trial court’s denial of Cotton’s motion for judgment notwithstanding the verdict is affirmed.

II. Weight of the Evidence

¶ 9. Finally, and in the alternative, Cotton claims that he is entitled to a new trial because his conviction is against the overwhelming weight of the evidence. A motion for a new trial should be granted only in “exceptional cases in which the evidence preponderates heavily against the verdict.” When reviewing the denial of a motion for a new trial, the evidence must be viewed in the light most favorable to the verdict. A verdict should be upheld unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” This occurs only if reasonable men could not have found the defendant guilty based on the evidence when it is viewed in the light most favorable to the verdict. For the reasons stated in the sufficiency-of-the-evidence analysis, allowing the jury’s guilty verdict to stand does not sanction an unconscionable injustice against Cotton. Finding no error, we affirm both the judgment of the Court of Appeals and Cotton’s conviction and sentence in the trial court.

¶10. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY WITH ANY PREVIOUSLY IMPOSED SENTENCES.

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

KITCHENS, Justice,

dissenting:

¶ 11. In Mississippi criminal prosecutions based entirely on circumstantial evidence, the State carries the significant burden to prove the defendant’s guilt beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence. Lynch v. State, 877 So.2d 1254, 1268 (¶ 84) (Miss.2004); Montgomery v. State, 515 So.2d 845, 848 (Miss. 1987). In such cases, “[t]o justify conviction, there must remain no reasonable hypothesis save that of guilt.” Baker v. State, 817 So.2d 901, 902 (Miss.1975). Therefore, when the State’s evidence is entirely circumstantial, it is. the burden of the State to eliminate every reasonable hypothesis consistent with innocence; it is not the burden of the defendant to argue whether a certain reasonable hypothesis occurred or not. The majority improperly shifts the burden of proof to the defendant in a circumstantial evidence case, and for that reason, I must respectfully dissent.

¶ 12. The sole physical evidence against Cotton was the presence of DNA on a very small amount of scrapings taken from the fingernails of Burks’s right hand. As noted by the majority, other jurisdictions have affirmed convictions based solely on DNA evidence. However, every one of the cited cases is markedly different from the one before us. In State v. Toomes, 191 S.W.3d 122 (Tenn.Crim.App.2005), the defendant’s DNA material was found in the vaginal and anal swabs of a rape victim, in a place that indisputably is inconsistent with casual contact and exclusionary of a reasonable hypothesis consistent with innocence. Again, in Roberson v. State, 16 S.W.3d 156 (Tex.Ct.App.2000), the defendant’s DNA was obtained from a rape-kit examination of the victim’s vagina. The defendant in Rush v. Artuz, 2009 WL 982418 (E.D.N.Y. April 10, 2009), was convicted of rape after his genetic material was found in a rape kit. A DNA profile obtained from a vaginal smear containing semen was used to convict the defendant in State v. Hunter, 169 Ohio App.3d 65, 861 N.E.2d 898 (2006). Clearly, if Cotton’s DNA had been obtained from a rape kit, or found in or near Burks’s vagina in the form of semen or blood, the evidence combined with its location would be sufficient to convict. But his DNA was found in a few sparse scrapings obtained from underneath the fingernails of one of Burks’s hands, and it was shown that the two had been in close physical proximity only hours before Burks’s murder.

¶ 13. The only case cited by the majority that comes close to the facts before this Court is State v. Abdelmalik, 273 S.W.3d 61 (Mo.Ct.App.2008). The defendant in that case was convicted of capital murder based upon his DNA material’s having been found underneath the fingernails of the victim. Id. at 64. However, in that case, “a ‘significant’ amount of Abdelma-lik’s DNA was found under the fingernails of the victim’s left hand, which [was] also the hand missing a fingernail from the apparent struggle.” Id.

The material discovered under the victim’s left hand fingernails was visible to the naked eye and contained human tissue and blood. The DNA testing returned a genetic profile that would occur only once in one quintillion individuals. The amount of material collected from the victim’s left hand fingernails was more than one hundred times more than is necessary to develop a full genetic profile.

Id. (emphasis added). In this case the amount of testable genetic material was so minute that it was consumed after the first, DNA test. Dr. Hayne testified that he did not see “any foreign material underneath the fingernails” when he scraped them. There was no sign of an intense physical struggle such as in Abdelmalik, where the attacker’s blood and flesh were scratched off by the victim during the attack. In fact, none of the cases from foreign jurisdictions cited by the majority is comparable to the case before us, in that, in all of those cases, the location of the defendant’s DNA was, without question, inconsistent with casual contact, and, particularly in the rape cases, inconsistent with any reasonable hypothesis consistent with innocence.

¶ 14. Here, as stated in the indictment, the State had the burden of proving that Joe Cotton “did unlawfully, willfully and feloniously, without authority of law, and with deliberate design to effect death, kill Fannie Lee Burks.... ” In support of its case, the State adduced evidence showing that a very small amount of Cotton’s DNA was found underneath the fingernails of Burks’s right hand and that Burks’s gunshot wounds were “contact” wounds, meaning her killer placed the barrel of the gun on or close to her skin before shooting her. The State elicited testimony indicating that Cotton knew Burks and even had been in her apartment on two prior occasions. It adduced evidence showing that Cotton had been in close physical proximity with Burks the day she was murdered, and that the two may have touched each other. The' State’s DNA expert testified that casual contact can lead to DNA under human fingernails, particularly if the person to whom the DNA belongs is sweating or bleeding when the contact between the nail and the skin occurs. No evidence was adduced to show that Cotton was at or near Burks’s apartment at the time of her death; no murder weapon was found; and none of Burks’s valuables was recovered or observed in Cotton’s possession.

¶ 15. Two reasonable hypotheses explaining how Cotton’s genetic material got under the fingernails of Burks’s right hand can be gleaned from the evidence adduced at trial. Either Burks scratched Cotton as he attacked her and killed her from close range, or she scratched or touched him with her fingernail as she handed him his food at the restaurant where she worked a few hours before she was killed. The majority’s reliance on Cotton’s statement to police that Burks did not scratch him when she handed him his food is unpersuasive. Cotton was asked whether he remembered whether someone from whom he had purchased food had scratched him during an exchange that had occurred more than thirteen years before. The majority’s expectations regarding the power and accuracy of longterm human memory far exceed my own. Because both of the hypotheses were reasonable, based upon the evidence, the State did not meet its burden of proof as a matter of law.

¶ 16. This Court has reversed convictions predicated on circumstantial evidence where the evidence proved only that the defendant had been near the object of the crime at some point. In Deloach v. State, 658 So.2d 875, 877 (Miss.1995), this Court overturned a conviction for burglary because the only evidence linking the defendant to the crime was his palm print on the side of a vending machine located at the vocational complex where the burglary had occurred. The Court found that “[t]he State failed to address the very reasonable hypothesis that Deloach placed his palm print on the vending machine during a time when he had lawful access to the machine[,]” despite the fact that Deloach was not a student at the school and did not seem to have a reasonable explanation for ever having touched the vending machine. Id. Ultimately, the State did not meet its burden because it “relie[d] on the inference that if Deloach ever had access to the machines then it was necessarily at the time of the burglary” without addressing the other reasonable inference of innocence that the palm print’s presence on the vending machine created. Id. at 877-78.

¶ 17. I see no evidentiary difference between the palm print found on the vending machine in Deloach and the DNA found underneath Burks’s fingernails in the present case. In Deloach, the State failed to show a motive for the crime, or to show any evidence that Deloach had touched the vending machine during the commission of a burglary. Similarly, in this case, the State adduced no evidence of a murder weapon, no evidence of Cotton’s having been near the victim’s apartment around the time of the murder, and no evidence to show that his DNA had been deposited under Burks’s fingernails during the murder. In Deloach and in the case before us, both an inculpatory and exculpatory explanation reasonably can be inferred from the circumstantial evidence. Accordingly, the State did not carry its burden of proof as a matter of law.

¶ 18. The State bears the burden of excluding any reasonable hypothesis consistent with innocence beyond a reasonable doubt. If the State has not been able to exclude any and all reasonable hypotheses consistent with innocence, then it has failed in its burden of proof. “To justify conviction, there must remain no reasonable hypothesis save that of guilt.” Baker, 317 So.2d at 902. “[Wjhere the evidence tends equally to sustain two inconsistent propositions, neither can be said to have been established by legitimate proof and certainly not through the guise of circumstantial evidence.” In re B.J.S., 174 Ga. App. 515, 516, 330 S.E.2d 186, 188 (Ga.Ct. App.1985). “If ... the evidence of guilt or innocence remains anywhere near .equipoise — that is, the facts are equally susceptible to two or more constructions— then reasonable doubt exists as a matter of law.” Haskins v. Commonwealth, 44 Va. App. 1, 9, 602 S.E.2d 402, 406 (Va.Ct.App. 2004) (quotation omitted).

¶ 19. The majority states that the testimony provided in this case “does not support an inference of even casual contact.” With respect, I completely disagree. Cotton purchased food from Burks and she passed him a bag of food. One can imagine many ways in which casual and relatively unnoticeable contact, resulting in passage of DNA from Cotton to Burks, could have occurred while he was in the café with her. For example, Cotton could have sneezed on Burks, or inadvertently sprayed saliva onto her during the course of routine conversation. Burks’s wiping her face in the aftermath of such an innocuous occurrence could have resulted in the deposit of Cotton’s DNA under her fingernail. But it is not for this Court, or for Cotton, to develop a list of lawful scenarios in which Cotton’s DNA might have made its way to Burks’s fingernails. Rather, it is sufficient that the State’s expert testified that the DNA’s presence underneath the nail could have been the result of casual contact between the two. This provides an adequate evidentiary basis for a reasonable hypothesis that is consistent with Cotton’s innocence and requires his acquittal.

¶ 20. The State did not eliminate the possibility of transfer by casual, innocent contact, and the majority incorrectly holds that it is Cotton’s burden to adduce evidence to show that, in his encounter with Burks more than thirteen years prior, she shook his hand or rubbed his head or patted his back, or did anything else to touch him. It is not Cotton’s burden to prove that such casual touching occurred; it is the State’s burden to prove that it did not. This was the rationale relied upon by the Court in Deloach, where the defendant was under no obligation to argue an innocent explanation of the presence of his palm print on the vending machine at the site of the burglary. Instead, the Court correctly held that the State had failed to eliminate all reasonable innocent explanations for the presence of the palm print.

¶ 21. So should we do here. At the end of the day, the circumstantial evidence was capable of two reasonable interpretations: Cotton’s DNA got under some of Burks’s fingernails when he killed her, or through some casual contact with her. Both inferences are reasonable and supported by the evidence, and it is the State’s burden to eliminate all reasonable hypotheses consistent with innocence. It has not done so. The majority finds that the DNA material was “found in a location inconsistent with casual contact and absent a ‘reasonable hypothesis consistent with innocence.’ ” I find that, based upon the evidence adduced at trial, the DNA material was found in a location consistent "with casual contact and that there was a reasonable hypothesis consistent with innocence. Because Cotton’s conviction should be reversed, I respectfully dissent.

DICKINSON, P.J., CHANDLER AND KING, JJ„ JOIN THIS OPINION.

      . Cotton v. State, 144 So.3d 162, 163-66, 2013 WL 3894864, **1-3 (Miss.Ct.App. July 30, 2013).

      . Id. at 165-66, 2013 WL 3894864, at *3.

      . Montgomery v. State, 515 So.2d 845, 848 (Miss. 1987) (internal citations omitted); see also Bush v. State, 895 So.2d 836, 843 (Miss. 2005) (stating an appellate court is not required "to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt [but][i]nstead, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”).

      . Black's Law Dictionary 760 (8th ed.2004) (emphasis added).

      . Bush, 895 So.2d at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      . Weatherspoon v. State, 56 So.3d 559, 564 (Miss.2011).

      . Id. at 564.

      . Jenkins v. State, 947 So.2d 270, 278 (Miss. 2006) (quoting Baker v. State, 802 So.2d 77, 81 (Miss.2001)).

      . Bush, 895 So.2d at 844 (Miss.2005) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

      . The Court relied on two prior cases, Cor-bin v. State, 585 So.2d 713 (Miss.1991), and McLain v. State, 198 Miss. 831, 24 So.2d 15 (1945), in holding that the circumstantial evidence was insufficient to support a conviction. The Court in Corbin reversed a burglary conviction because the defendant’s fingerprints were found on a few of the items that were stolen, and those facts, standing alone, did not prove beyond a reasonable doubt that the defendant was the one who committed the burglary. Corbin, 585 So.2d at 715-16. In McLain, the Court reversed and rendered a conviction for larceny of an automobile when the sole evidence against the defendant consisted of his fingerprint on the rear-view mirror of the car. McLain, 24 So.2d at 16.


author: KITCHENS, Justice, COLEMAN, Justice,

text:
    Nancy DOWNEY a/k/a Nancy Pruitt Downey a/k/a “Cookie” v. STATE of Mississippi.
    No. 2012-CT-00815-SCT.
    Supreme Court of Mississippi.
    Aug. 7, 2014.

      Office of State Public Defender by Justin Taylor Cook, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, John R. Henry, Jr., attorneys for appellee.
   ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court:

¶ 1. Nancy Downey was convicted of burglary of a dwelling and first-degree arson by a jury in the Circuit Court of the Second Judicial District of Jones County and was given two concurrent twelve-year sentences. Following the denial of Dow-ney’s motion for judgment notwithstanding the verdict or for a new trial, she appealed. The Court of Appeals affirmed her convictions and sentences. In her petition for writ of certiorari, Downey argues that the trial court erred by failing to suppress her statement to law enforcement officers after she had invoked her Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "' Finding that Downey’s constitutional rights were violated, we reverse her convictions and sentences and remand this case for a new trial.

FACTS AND PROCEDURAL HISTORY

On July 22, 2009, the Jones County Sheriffs Department arrived at a house fire to find the home fully engulfed. Witnesses stated that before the fire, they had seen Nancy Downey walking away from the home and carrying a large, full bag. Deputy James Atkins went to the nearby home of Marvin Pruitt, Downey’s brother, to investigate. Downey and another woman answered the door. Downey lied to the deputy, claiming the other woman was Downey and that she did not start the fire, even though the deputy had not even questioned her about the fire at that point. However, the deputy knew Downey from a previous occasion and knew that she was lying.
Downey then admitted to being in the home earlier that evening [smoking a cigarette that fell into some clothes and started a fire]. [A] bag of stolen items from the burned home was recovered from under a bed in Pruitt’s home.

Downey v. State, 144 So.3d 169, 171, 2013 WL 4712724, at *1 (Miss.Ct.App. Sept.3, 2013).

¶ 2. Downey was arrested and interrogated. At the jail, a law enforcement officer removed Downey’s handcuffs in the interrogation room and told her to have a seat in a chair. The officer informed Dow-ney that he was there to ask her some questions and was “going to try to get a bond set” to get her out of jail. The officer then asked Downey whether she could read and write. Downey responded, “A little.” Downey, who was sixty-four years old at the time,. also said that she had not attended high school. The officer read Downey her Miranda rights, and the following exchange occurred:

Officer: Now we are going to talk for a just a little bit, ok, and then I’m gonna try and get you a bond set, stuff like that or whatever we need to do so we can get you on out of this jail, ok? (Officer points, out Miranda rights on paper, and reads them aloud.) You haven’t been promised or threatened any-, thing, have you? Nobody’s treated you bad or anything? They treated you good at the jail last night?
Downey: Yeah, but I didn’t sleep last night.
Officer: Nancy can you put your signature right there for me in those two spots?
Downey: (signs the paper) I got a lawyer.
Officer: Do what?
Downey: I got a lawyer.
Officer: Who is that?
Downey: Brad Sullivan.
Officer: Brad who?
Downey: Brad Sullivan. He works at Trustmark Bank.
Officer: Do you want to talk to me or do you want to use him? I’ve got to know that okay?
Downey: I could use him.
Officer: Is he a tall guy? Real tall young man? I know a Brad, but I don’t think he is a Sullivan. But he works there at the bank. He works for Sullivan and Sullivan? Brad Thompson?
Downey: Yeah.
Officer: How does he represent you?
Downey: He did me ... when we had a wreck.
Officer: That’s fine, Nancy, but what I need to know is do you want to talk to me now.... I mean I don’t know if I can get him over here right this minute. Do you want to talk with me now, without him, or do you want to wait for him?
Downey: I’ll talk with you.

¶ 3. After a psychiatric evaluation, Downey was found “intellectually disabled and functionally illiterate” yet competent to stand trial. At trial, Downey moved to suppress the statement she had made to the law enforcement officer. The trial judge found that Downey had given permission to the officer to continue questioning and denied the motion. Downey’s recorded statements to the officer were played to the jury, including the statement that Downey “was tired of looking at the house because no one was allowed to rent it.”

¶ 4. A jury found Downey guilty of burglary of a dwelling and first-degree arson. She was sentenced to serve two concurrent twelve-year sentences in the custody of the Mississippi Department of Corrections. Downey’s motion for judgment notwithstanding the verdict or for a new trial was denied, and she appealed.

¶ 5. On appeal, Downey argued that she had invoked her right to counsel during police questioning, but the law enforcement officer continued the interrogation in violation of her Miranda rights. The Court of Appeals found no error and affirmed the judgment. Downey raises the same argument in her petition for certiora-ri regarding the alleged violation of her Miranda rights.

STANDARD OF REVIEW

¶ 6. This Court will reverse a trial court’s denial of a motion to suppress if the court’s ruling was a manifest error or contrary to the overwhelming weight of the evidence. Chim v. State, 972 So.2d 601, 607 (Miss.2008) (citations omitted).

DISCUSSION

¶ 7. For this Court to determine whether Downey’s rights were violated, we first must decide whether she affirmatively invoked her right to counsel. Due to the fact-specific nature of requests for counsel and Miranda waivers, the applicable law has become muddled. Accordingly, we review such requests on a case-by-case basis. On the issue of Miranda rights, this Court has held that:

[I]f the defendant invokes h[er] right to counsel, the interrogation must cease until an attorney is present. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived h[er] privilege against self-incrimination and h[er] right to retained or appointed counsel. Once a defendant asks for counsel, [s]he cannot be interrogated further until counsel has been made available, unless the accused [herself] initiates further communication, exchanges, or conversations with the police.

Barnes v. State, 80 So.3d 813, 316-17 (Miss.2010) (internal quotations and citations omitted). In accordance with this Court’s decision in Barnes, we must determine whether the phrase “I could use him” (referring to Downey’s attorney) invoked Downey’s right to counsel.

¶ 8. When there is ambiguity in the request for counsel, this Court applies a three-step test to determine whether the trial judge correctly decided whether to admit or suppress a defendant’s statements to a law enforcement officer. See Holland v. State, 587 So.2d 848 (Miss. 1991). In applying this test, we consider (1) whether counsel was ambiguously requested; (2) if the request for counsel was ambiguous, whether the appropriate questions to identify the counsel requested were asked; and (3) if the interrogation continued without counsel, whether there was a valid Miranda waiver. Id. at 855-62.

¶9. The dissent argues that the officer’s conduct was appropriate under Holland, and that we should follow the United States Supreme Court decision in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), decided three years after Holland. In Davis, the Court held that a suspect “must unambiguously request counsel[,]” and that law enforcement officers are not required to cease questioning based on an ambiguous request for counsel. Id. at 459, 114 S.Ct. 2350. We disagree. Davis does not require Mississippi to follow the minimum standard that the federal government has set for itself. We are empowered by our state constitution to exceed federal mini-' mum standards of constitutionality and more strictly enforce the right to counsel during custodial interrogations. See Miss. Const, art. 3 § 26; see also Smith v. State, 500 So.2d 973, 979 (Miss.1986) (holding that, while the Brady rule established a “constitutional floor” for determining when nondisclosure of exculpatory evidence necessitated a new trial, this State’s own rules of discovery could require stricter enforcement). Further, as explained below, we do not find that the officer’s conduct was appropriate under Holland. The three-part test established in Holland adequately guards the right to counsel for custodial suspects who may not know that the right to counsel must be unambiguously asserted, or that the right exists regardless of the amount of time it might take to obtain counsel. Accordingly, we continue with our analysis under Holland.

¶ 10. First, we must ascertain whether Downey invoked her right to counsel. Holland, 587 So.2d at 855. The right to counsel may be invoked specifically in any manner and at any stage of the interrogation process. Id. at 857. A defendant is not required to use specific language such as “I want a lawyer,” in order to invoke the right to counsel. Montoya v. Collins, 955 F.2d 279, 283 (5th Cir.1992). Once counsel is requested, the law enforcement officer cannot question the accused about her criminal conduct. Kirkland v. State, 559 So.2d 1046, 1047 (Miss.1990). However, the officer is permitted to inquire about counsel for clarification purposes. Kuykendall v. State, 585 So.2d 773, 777 (Miss.1991). We must give a broad interpretation to the request for counsel. Holland, 587 So.2d at 856.

¶ 11. Here, Downey was in custody and was taken into an interrogation room for questioning. After being read her Miranda rights, Downey stated that she “had an attorney” and referenced him by name. At this point, the officer was permitted to seek clarification concerning the lawyer to whom Downey was referring, which he did. The officer continued to question Downey about the identity of the attorney. The next step of the test is for this Court to make a determination of whether the officer could properly continue the interrogation process.

¶ 12. We must decide whether the officer’s continuing remarks regarding Downey’s lawyer were appropriate. Id. If a defendant ambiguously requests counsel, any subsequent clarifying statements must not “coerce or intimidate the suspect into waiving [her] rights.” Id. at 858. (quoting U.S. v. Fouche, 833 F.2d 1284, 1287 (9th Cir.1987)); see also Owen v. Alabama, 849 F.2d 536, 539 (11th Cir.1988), overruled on other grounds by Ex parte Owen, 586 So.2d 963 (Ala.1991) (“When a defendant makes an equivocal request for an attorney during custodial interrogation, the ‘scope of the interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it is clarified.’ ”) (quoting Thompson v. Wain-wñght, 601 F.2d 768, 771 (5th Cir.1979)); Terry v. LeFevre, 862 F.2d 409, 412 (2d Cir.1988) (“[W]hen a suspect makes an equivocal statement that arguably can be construed as a request for counsel, interrogation must cease except for narrow questions designed to clarify the earlier statement and the suspect’s desire for counsel.”). The interrogator’s line of questioning must not exceed the limits of permissible clarification. Holland, 587 So.2d at 858. Determining the limits of clarification is fact specific. A significant question is whether the interrogator infringed on the defendant’s desire to stop the interrogation. Id.

¶ 13. We find that, when Downey stated that she had an attorney and “could use him,” all interrogation was required to cease except questioning for the purpose of clarifying the request for counsel. Here, the officer represented to Downey that her attorney could not be brought to the jail “right this minute.” The officer’s comments to Downey attempted to link her participation in the interrogation to the process of setting bail and suggested that her talking to the officer was a prerequisite to that process. Further, the standard in providing counsel does not depend on the expediency with which a law enforcement officer may secure counsel for the accused. Any subsequent conversation cannot exceed the bounds of clarifying the accused person’s request. The officer in this case overstepped the limits of proper clarification by emphasizing the amount of time and difficulty that would be involved in obtaining counsel for Downey. Additionally, the officer’s persistence infringed on Downey’s right to cease the interrogation because she expressed no desire to continue speaking to the officer. It was only after the officer told Downey that her attorney could not get there “right this minute” that she acquiesced in talking with the officer. Even then, the officer did not reiterate that Downey had a right for her counsel to be present during the continued conversation. Because we find that, under the facts of this case, Downey invoked her right to counsel and that the officer improperly continued questioning her, we conclude that Downey’s Fifth Amendment rights to án attorney and against self incrimination were violated. Nonetheless, for sake of completeness, we turn to the final step in our analysis.

¶ 14. If interrogation continues outside the presence of the requested counsel, the State bears a heavy burden of proving beyond a reasonable doubt that the defendant validly waived the right to counsel and the privilege against self-incrimination. Id. at 859 (quoting North Carolina v. Butler, 441 U.S. 369, 372-73, 99 S.Ct. 1755,1757, 60 L.Ed.2d 286, 291-92 (1979)). Specifically, the State must show the defendant “voluntarily, knowingly, and intelligently” waived her Miranda rights. Holland, 587 So.2d at 859 (citations omitted). Even where the defendant signed a form waiving her Miranda rights, any statement given to a law enforcement officer may be attacked on the ground that it was involuntary. Grayson v. State, 806 So.2d 241, 248 (Miss.2001). In determining the validity of a Miranda waiver, the trial judge must base his or her finding on appropriate principles of law, supported by substantial evidence. Holland, 587 So.2d at 860. The Court will review the trial judge’s findings upon an independent review of the record. Id.

¶ 15. Based on our review of the record, we find that the State did not satisfy its burden of proving beyond a reasonable doubt that Downey had waived her Miranda rights. The State did not show that Downey knowingly, voluntarily, and intelligently waived her Miranda rights. The State argues that Downey’s request did not adequately request that her attorney be present at the time of questioning. But as the Fifth Circuit Court of Appeals held in Montoya, no magic words are required when invoking the right to counsel. Montoya, 955 F.2d at 283. After reviewing the record, we find that, in this case, Downey requested counsel. First, she stated that she had an attorney. Then, she said that she could use him. Despite these explicit statements, the officer crossed the line of clarifying whom Downey had requested as counsel by indicating some unspecified difficulty of procuring the lawyer’s presence expeditiously. All of this occurred after the officer had injected the alluring bait of bail into his conversation with Downey.

¶ 16. Additionally, we find the denial of Downey’s motion to suppress contrary to the overwhelming weight of the evidence. At no point after requesting counsel did Downey initiate further conversation with the law enforcement officer. See Barnes, 30 So.3d at 316-17. All conversation and questioning was initiated by the officer. In reviewing the transcript from the suppression hearing, the trial judge applied the correct principles of law. His conclusion, however, is unsupported by the evidence. The judge’s decision did not flow logically from the timing and sequence of the request and subsequent interrogation or the content of the questioning. Accordingly, we find that the trial judge abused his discretion in denying Downey’s motion to suppress.

CONCLUSION

¶ 17. Because we find that Downey invoked her right to counsel under the facts of this case, and that her Miranda rights were violated when the interrogating officer continued his questioning without having her attorney present, the trial judge abused his discretion by denying Downey’s motion to suppress and allowing Downey’s recorded statement to be played for the jury. The Court of Appeals incorrectly affirmed the trial court’s conviction. Accordingly, the judgment of the Court of Appeals is reversed and Downey’s conviction in the trial court is reversed, and her case is remanded to the Circuit Court of the Second Judicial District of Jones County for a new trial.

1118. REVERSED AND REMANDED.

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

COLEMAN, Justice,

dissenting:

¶ 19. My disagreement with my colleagues in the majority lies in the legal significance of four words spoken by the defendant, “I could use him.” The majority holds that, when the defendant spoke the words, she invoked her right to counsel, at which point the investigator was required to cease questioning. I agree that interrogation must stop the moment a suspect invokes the right to counsel. See Barnes v. State, 30 So.3d 313, 316-17 (¶ 8) (Miss.2010) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). I disagree that the defendant in the case sub judice invoked her right to counsel.

¶ 20. I begin by noting the high standard of review employed when we examine the trial court’s decision to deny suppression of a statement. We reverse only when one of the two following things are true: (1) the trial court’s ruling constituted manifest error, or (2) the trial court’s ruling was contrary to the overwhelming weight of the evidence. Barnes, 30 So.3d at 316 (¶ 8) (Miss.2010); Chim v. State, 972 So.2d 601, 607 (¶20) (Miss.2008).

¶21. In a 1991 Mississippi Supreme Court case, Holland v. State, 587 So.2d 848 (Miss.1991), the majority employed a three-part test used when the request for counsel, if any, was ambiguous. However, three years after Holland, the United States Supreme Court issued its opinion in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), relied upon by the Court of Appeals in the instant case, in which it wrote, [T]he suspect “must unambiguously request counsel.” Id. at 459, 114 S.Ct. 2350 (emphasis added). “[A] statement either is ... an assertion of the right to counsel or it is not.” Id. (quoting Smith v. Illinois, 469 U.S. 91, 97-98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984)).

¶22. Like the Supreme Court of the United States in Davis, we too should decline to “require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney.” Davis, 512 U.S. at 459, 114 S.Ct. 2350. In the case sub judice, the defendant made ambiguous statements regarding counsel, and the officer asked questions to clarify the ambiguity. While the Davis Court encouraged police to ask clarifying, followup questions to a statement that could be a request for counsel, it stopped short of issuing a requirement for police to do so. Id. at 461, 114 S.Ct. 2350. I would hold that the officer’s conduct was appropriate under Holland and Davis, that the defendant waived her right to counsel when he told the officer that she would talk to him, and that the trial judge did not err in refusing to suppress the confession.

¶ 23. For the foregoing reasons, I respectfully dissent.

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

      . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . We note that the officer’s conduct as seen in the video does not seem to be overbearing or abusive.