author: KITCHENS, Justice, COLEMAN, Justice,

text:
    Patrick COLEMAN v. STATE of Mississippi.
    No. 2009-CT-01350-SCT.
    Supreme Court of Mississippi.
    Oct. 24, 2013.

      Patrick Coleman, pro se.
    Office of the Attorney General by Ladonna C. Holland, Scott Stuart, attorneys for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. More than two years after his trial, Patrick Coleman was ordered to a retrospective mental competency hearing by the Court of Appeals because he erroneously had been denied a pretrial competency hearing by the Lauderdale County Circuit Court. Finding that the nunc pro tunc competency hearing did not adequately protect Coleman’s due process rights and the procedural guarantees of Uniform Rule of Circuit and County Court Practice 9.06, we reverse the decisions of the Court of Appeals and the Lauderdale County Circuit Court and remand the case to the latter court for a new trial consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶ 3. The facts surrounding the death of Frederick Pruitt are gleaned from the record. The testimony of Kimberly Watts provides the following account of relevant events. On November 28, 2007, Patrick Coleman approached Watts’s apartment. A number of Watts’s friends, including Frederick Pruitt, were inside the apartment, preparing to play dominos. According to Watts, she saw Coleman and another man, both armed, running toward the house. Coleman demanded that Pruitt come out of the apartment. Watts testified that, when Pruitt refused to come out, Coleman entered the apartment and shot at Pruitt. A bullet struck Pruitt in the forehead and killed him. Watts stated that Coleman told her to call 911 and then waited outside the apartment for police to arrive.

¶ 4. Before trial, on November 24, 2008, Coleman filed a “Motion for Psychiatric Examination and/or Treatment.” The trial court granted the motion in an effort to determine whether Coleman was mentally competent to stand trial and to ascertain his mental state at the time Pruitt was killed. The trial was continued several times while Coleman awaited his examination. The trial court granted a final continuance on March 24, 2009, setting the trial for June 1, 2009. At the time of the final continuance and scheduling of the trial for a day certain, no mental evaluation had been performed.

¶ 5. Coleman’s psychological and psychiatric evaluation occurred on April 1, 2009, at the Mississippi State Hospital at Whitfield. The interview took approximately two hours. It was conducted by two state psychologists and a state psychiatrist, who prepared for it by reviewing Coleman’s police records, his statement to police following his arrest, his psychiatric records from previous mental health treatment at three different hospitals, his school records, and information obtained from the jail staff where he was incarcerated. A four-page summary report of Coleman’s evaluation was filed with the circuit court on May 18, 2009, two weeks before his scheduled trial. It noted that Coleman had been diagnosed with several psychiatric disorders, including schizophrenia, depression, intermittent explosive disorder, and personality disorder. He also had suffered from “alcohol abuse and cannabis abuse disorders.” However, the report concluded that Coleman possessed “the sufficient present ability to consult with his attorney to a reasonable degree of rational understanding in the preparation of his defense, and that he had a rational as well as a factual understanding of the nature and object of the legal proceedings against him.” The evaluators also determined that, at the time of the crime, “Coleman was not experiencing symptoms of a major mental illness.”

¶ 6. Coleman’s trial commenced on June 1, 2009. At that time, the summary report was the only information regarding the evaluation that had been received by the trial court and the attorneys for the prosecution and the defense. The following is taken from the Court of Appeals opinion in Coleman v. State, 127 So.3d 236, 237 (Miss. 2012).

On the morning of June 1, 2009, Coleman’s counsel ... requested a continuance, asserting that Coleman was entitled to a full competency hearing and that she needed time to subpoena witnesses who would testify as to Coleman’s competency. She also wanted to cross-examine the physician who made the mental-evaluation report on Coleman. In response, the trial judge questioned why defense counsel had waited until the morning of trial after the jury had been qualified to request a competency hearing, when the defense had received the mental-evaluation report approximately ten days prior to trial. The trial judge concluded that the issue was waived....
On the second morning of trial, defense counsel again raised the issue of competency. She filed a motion for a mistrial and a reinstatement of the request for a competency hearing pursuant to Uniform Rule of Circuit and County Court 9.06, but the motion was denied. Attached to the motion was an affidavit from Coleman’s wife stating that her husband “suffers from many mental problems,” and before the incident, he “had been seeing invisible people and talking to himself for over a week”; he “was out of his medication and was becoming more and more uncontrollable.” Also attached was an affidavit by defense counsel insisting that Coleman was incompetent to stand trial.

Coleman testified in his own defense, stating that he meant only to scare Pruitt and not to shoot him, and that he blanked out before the second shot was fired. The trial court denied a jury instruction on the lesser-ineluded offense of manslaughter. Coleman was convicted of deliberate design murder and sentenced to life in prison. After the trial, in a motion for new trial.or judgment notwithstanding the verdict (JNOV), counsel for Coleman again argued that Rule 9.06 required a competency hearing that Coleman erroneously had been denied.

At the hearing on the post-trial motion, defense counsel ... introduced into evidence Coleman’s full mental evaluation from Whitfield, which Coleman’s attorney had only obtained the day before. Defense counsel explained that she had not requested a competency hearing before trial because it was her understanding that once the court orders the defendant to submit to a psychiatric examination under Rule 9.06, the court must conduct a hearing. The trial court did not accept defense counsel’s reasoning and maintained that all of the information that was presented indicated Coleman was competent to stand trial. The trial court denied the motion for a new trial or JNOV.

Id. at 239. Further, the trial court gave no indication that it had reviewed the full report in denying Coleman’s request for a rehearing. Id. at n. 1.

¶ 7. On appeal, the Court of Appeals correctly found that Coleman had been entitled to a competency hearing pursuant to Rule 9.06. See id. However, rather than reversing and remanding for a new trial, the Court of Appeals determined that there was “sufficient evidence to make a meaningful retrospective competency determination.” Id. In September 2011, a retrospective competency hearing was held in the trial court, at which the parties were permitted to present evidence regarding Coleman’s competency to stand trial, or his lack thereof, in June of 2009. Coleman presented almost no evidence to support his assertion that he had been mentally incompetent at the time of trial. Besides asking the trial court to take judicial notice of the facts of the case and Coleman’s demeanor during trial, the State called no witnesses and presented no evidence. The one piece of evidence that was admitted was a copy of the four-page summary report from Whitfield. For unknown reasons, counsel for Coleman at the nunc pro tunc hearing did not introduce, and the court did not consider, the full twenty-nine-page mental competency report. The trial court found that Coleman had been mentally competent to stand trial in June of 2009. The Court of Appeals found no error and affirmed that determination. Coleman also raised an ineffective assistance of counsel claim on appeal, but the Court of Appeals declined to address it, finding that it would be more appropriate in a post-conviction-relief context. Coleman petitioned this Court for a writ of certiorari, claiming that he was entitled to a new trial rather than a retrospective competency hearing. We granted that petition.

ANALYSIS

¶ 8. In order to be deemed mentally competent to stand trial, a defendant must have “the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... and ... a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788-89, 4 L.Ed.2d 824, 825 (1960) (per curiam). Rule 9.06 governs the procedure for a determination of mental competency in Mississippi. It provides that:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court....
.After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

URCCC 9.06 (emphasis added).

¶ 9. Although Rule 9.06 mandates a competency hearing after a psychiatric evaluation is conducted, this Court held in one case that a hearing does not necessarily have to take place as long as “the purposes of Rule 9.06[a]re satisfied.” Hearn v. State, 3 So.3d 722, 730 (Miss.2008). There, no competency hearing was held after the mental examination had taken place. Id. at 727. However, one of the doctors who had examined the defendant testified at trial regarding his mental competency and was cross-examined by counsel for the defendant. Id. at 730. This Court held that, “[b]ecause Hearn was afforded the opportunity to present competing evidence, the purposes of Rule 9.06 were satisfied.” Id.

¶ 10. In two later cases, we held that the requirements of Rule 9.06 were not met when trial courts failed to conduct pretrial mental competency hearings, and those failures necessitated new trials. In Sanders v. State, 9 So.3d 1132, 1136 (Miss. 2009), this Court held that the “plain language” of Rule 9.06 requires a “competency hearing once a trial court orders a psychiatric evaluation to determine competency to stand trial.” There, the trial court granted the motion for a psychiatric examination, the examination was performed, but no subsequent competency hearing was held, nor did the trial court make any determination on the record regarding the defendant’s present competency to stand trial. Id. at 1136-37. We found that the failure to do so was reversible error. Id. at 1139. Similarly, in Jay v. State, 25 So.3d 257, 263 (Miss.2009), this Court held that the failure to conduct a competency hearing prior to or during trial “was a violation of [the defendant's constitutional rights and, therefore, required] reversal.”

¶ 11. Most recently, in Pitchford v. State, 2010-DR-01031-SCT (Order of February 14, 2013), this Court ordered a post-trial competency hearing to determine whether the defendant had been mentally competent to stand trial. In Pitchford, a capital murder case, the trial court granted the defendant a competency hearing,, and the defendant submitted to a mental examination at the Mississippi State Hospital. Pitchford, 2010-DR-01031-SCT. The trial court held a hearing to rule on several pending motions as well as competency. Id. Defense counsel was not provided notice that Pitchford’s competency to stand trial would be addressed at the hearing, and came prepared to argue only the pending motions. Id. Based on the written report from the Mississippi State Hospital, the trial court determined that Pitch-ford was mentally competent to stand trial. Id. This Court held that “[a] Defendant is entitled to reasonable prior notice of the hearing at which competency to stand trial will be decided, so that the defendant will have the opportunity to subpoena witnesses and produce additional information for consideration by the trial judge.” Id. In order to afford Pitchford’s counsel ample time to prepare, we ordered the trial court to conduct a hearing to determine whether Pitchford had been mentally competent to stand trial. Id.

¶ 12. The State argues that the case before us is akin to Hearn, because the post-trial, post-appeal competency hearing for Coleman was conducted on the basis of the mental evaluation Coleman had received before his trial occurred. Since the information was current when Coleman went to trial, and Coleman was provided an opportunity to call witnesses and present evidence to support his position, as well as cross-examine the State’s witnesses, the State argues that the purposes of Rule 9.06 were satisfied, and, therefore, a new trial is not warranted. The State further argues that, because this Court ordered a retrospective competency hearing in Pitchford, such a hearing was appropriate in this case. Coleman argues that this Court’s holdings in Sanders and Jay are controlling, and that the failure to reverse and remand for a new trial was error because Rule 9.06 mandates a competency hearing before trial if a motion for mental examination has been granted.

¶ 13. The United States Supreme Court repeatedly has recognized the “inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances.... ” Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 909, 43 L.Ed.2d 103 (1975); see also Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836, 843, 15 L.Ed.2d 815 (1966); Dusky v. U.S., 362 U.S. 402, 403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). The ultimate inquiry in any mental competency determination is “whether the proceedings in this case were consistent with [the defendant’s] right to a fair trial.” Drope, 420 U.S. at 173, 95 S.Ct. 896. A defendant is denied his due process rights when the trial court fails “to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial....” Id. at 172, 95 S.Ct. 896. Rule 9.06 is meant to ensure that a defendant’s due process rights are not violated. It provides that, if the court has reasonable grounds to believe that the defendant is incompetent to stand trial, a mental evaluation shall be performed, and then a hearing shall be conducted to determine whether he is mentally fit to stand trial. The United States Supreme Court determined that a similar statutory procedure in Missouri was “on its face, constitutionally adequate to protect a defendant’s right not to be tried while legally incompetent.” Id. at 173, 95 S.Ct. 896. Our rule also is facially adequate to guard the due process rights of defendants.

¶ 14. As this Court has stressed time and again, “a rule which is not enforced is no rule.” Illinois Cent. R. Co. v. Moore, 994 So.2d 723, 726 (Miss.2008) (quoting Box v. State, 437 So.2d 19, 21 (Miss.1983)). “A ‘rule’ is ‘an authoritative direction for conduct.’ ” Moore, 994 So.2d at 726 (citation omitted) (emphasis in original). The language of Rule 9.06 is clear and it is simple. If a trial court “has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination.... ” URCCC 9.06 (emphasis added). “After the examination, the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial.” Id. (emphasis added). In other words, when a motion for a mental examination has been granted, such an examination must occur, and then a separate competency hearing must be conducted before trial begins. To proceed differently would not satisfy “the purposes of Rule 9.06.” Hearn, 3 So.3d at 730. If this Court begins to approve retrospective mental competency hearings, the procedural guarantees of Rule 9.06 will be undermined and, ultimately, defeated.

¶ 15. Justice Coleman’s dissent argues that the failure to conduct a timely competency hearing was harmless error because the defendant failed to present any evidence supporting a claim of incompetence during the retrospective hearing. This misses the mark for a number of reasons. The errors which occurred during the retrospective hearing were not harmless. The State did not subpoena or produce any of the examining doctors who had conducted the examination and determined Coleman to be competent. The State presented nothing beyond its asking the court to consider the record, Coleman’s demeanor during the trial, his decision to testify, and his own testimony at trial. The only item admitted into evidence was the four-page summary mental evaluation; the full twenty-nine-page report was not offered or received into evidence. There is no mention of the full report in the record of the nunc pro tunc competency hearing and no indication that the court relied on the full report in making its determination. Justice Coleman argues that defendant Coleman bears the burden to prove his incompetence to stand trial. Unfortunately, he never was given the chance to bear that burden. Coleman was given the burden to prove that he was incompetent to stand trial two years prior to his hearing, a burden not contemplated by Rule 9.06. He also has supported his assignment of error on appeal, that error being the occurrence of a nunc pro tunc competency hearing.

¶ 16. Additionally, for the court to have considered the defendant’s demeanor, testimony, and decision to testify at trial as part of the retrospective hearing put Coleman at a significant disadvantage. Had the trial court held a timely pretrial competency hearing, as it should have, none of the in-trial conduct of the defendant could have been considered at that time, because it had not occurred. The trial court should have considered only the information related to Coleman’s competence on the eve of trial.

¶ 17. Justice Coleman’s contention that the failure to hold a timely competency hearing was harmless error due to the lack of evidence presented at the untimely competency hearing is misplaced. The rather narrow issue before us is whether a retrospective mental competency hearing satisfies the purposes of Rule 9.06. See Hearn, 3 So.3d at 730. Under the plain and unequivocal language of the rule, it does not. Our task is to decide whether a retrospective hearing should have occurred at all, not whether sufficient evidence was presented at the retrospective hearing to render the initial error harmless. The trial court’s failure to have held a timely competency hearing constituted error when Coleman’s trial commenced in the absence of such, and any alleged deficient performance by defense counsel at the retrospective hearing did nothing to render that error harmless.

¶ 18. Finally, we note that the facts and circumstances presented in Pitchford were significantly different than those before us in the present case. In Pitchford, the trial court held a hearing, but defense counsel was not given notice that mental competency to stand trial was to be determined at that time. Pitchford, 2010-DR-01032-SCT (Order of February 14, 2013). Here, the trial court outright denied Coleman a hearing and determined that he somehow had waived his right to a competency hearing, despite repeated requests for such a proceeding both before and during trial. In Pitchford, the defendant’s competence to stand trial was determined based on a written report from the Mississippi State Hospital; but here, the trial court based its determination of Coleman’s competence to stand trial on a four-page summary report. Pitchford, 2010-DR-01032-SCT. We found that, under the facts in Pitch-ford, where the trial court held a mental competency hearing but did not give notice to defense counsel, a retrospective mental competency hearing was sufficient to guard the defendant’s due process rights. Id. On the other hand, under the facts in this case, when the trial court simply denied the defendant a hearing, we find that a retrospective mental competency determination does not adequately protect Coleman’s due process rights.

¶ 19. Counsel for Coleman had moved for a mental competency examination more than five months in advance of trial. The trial court granted the motion, and Coleman awaited, then submitted to, the court-ordered evaluation. The trial court’s grant of Coleman’s motion was conclusive of its having found reasonable ground to believe that Coleman was entitled to a mental examination and a competency hearing, based on the plain and forthright language of Rule 9.06. The trial court denied Coleman a competency hearing on the ground that it was not requested until the day of trial and so, according to the trial judge, it was waived. However, Rule 9.06 plainly mandates that the next step after the mental examination has occurred is for the trial court to hold a separate competency hearing before trial. This simply was not done. A retrospective competency hearing is not mentioned or even suggested by Rule 9.06, for the rule clearly specifies that a competency determination must occur “before or during trial,” not after trial, conviction, and appeal. Thus, such an innovation should not be condoned by this Court. It is neither prudent nor permissible for our trial courts, in their implementation of Rule 9.06, to deny a timely hearing on the accused person’s mental competence to stand trial, to proceed to trial, and then attempt later to remediate the omission by conducting an extremely untimely mental competency hearing.

CONCLUSION

¶ 20. Rule 9.06 of the Uniform Rules of Circuit and County Court Practice clearly delineates the procedure for a trial court’s determination of whether a potentially incompetent criminal defendant is mentally competent to stand trial. Once a mental health evaluation has occurred, the trial court must hold a separate competency hearing before the trial begins. If a criminal defendant’s mental competence is questioned during trial, and a motion for mental examination is granted, the trial must be suspended until a mental examination is completed and a separate hearing on mental competency is conducted. A failure to follow this procedure is not cured by a retrospective competency hearing. Patrick Coleman’s Motion for Psychiatric Examination and/or Treatment was granted. He was examined, but the trial court did not hold a separate and timely hearing to determine his mental competence to stand trial. The retrospective competency hearing ordered by the Court of Appeals does not comply with the strict but simple procedures mandated by Rule 9.06. Accordingly, we reverse the judgments of the Court of Appeals and the Lauderdale County Circuit Court and remand this case to the trial court for new proceedings consistent with this opinion.

¶ 21. REVERSED AND REMANDED.

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

COLEMAN, Justice,

dissenting:

¶ 22. I agree with the plurality that Rule 9.06 of the Uniform Rules of Circuit and County Court Practice requires the trial court to hold a competency hearing after it finds reasonable grounds to believe the defendant is incompetent to stand trial and orders a mental examination. So mandates the plain language of the rule and — unless we overturn it — our opinion in Sanders v. State, 9 So.3d 1132 (Miss.2009). Thus, the trial judge erred in refusing Coleman’s request for a competency hearing. However, I find that the error was harmless because the purposes of Rule 9.06 were satisfied. In Hearn v. State, we held that a hearing does not necessarily have to take place before trial as long as “the purposes of Rule 9.06[a]re satisfied.” Hearn v. State, 3 So.Bd 722, 730 (Miss. 2008). It is my opinion that, in the instant case, the purposes of the rule were satisfied. Therefore, I do not agree that the case should be remanded for a new competency hearing and new trial.

¶ 23. In Tutor v. State, 933 So.2d 1003 (Miss.Ct.App.2006), the trial court ordered an initial mental examination for the defendant and held a subsequent competency hearing. Id. at 1004 (¶ 2). The trial court determined Tutor lacked competence to stand trial and committed him to the state mental hospital. Id. Some time later, the state hospital staff sent a new report to the trial court, in which they indicated that, after three months of observing Tutor, they believed he was competent to stand trial. Id. at 1005 (¶ 5). The trial court did not hold another competency hearing, but Tutor nonetheless was tried and convicted of murder. Id. The Court of Appeals held that Rule 9.06 rendered the competency hearing mandatory and that the trial court committed error when it failed to hold one. Id. at 1006 (¶ 8). However, pursuant to an examination of the facts in the record pertinent to Tutor’s competence, the Court of Appeals held the error to be harmless and affirmed. Id. at 1006-1007 (¶¶ 9-13).

¶ 24. In Sanders v. State, 9 So.3d 1132 (Miss.2009), we affirmed the mandatory nature of the post-examination competency hearing and held that the trial court’s failure to hold a competency hearing required reversal and a new trial. Id. at 1136 (¶ 16). Sanders is distinguishable from the case sub judice. Coleman’s examiners prepared a report in which they concluded Coleman possessed “a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding in the preparation of his defense, and that he had a rational as well as factual understanding of the nature and object of the legal proceedings against him.” Although a report was prepared in Sanders, it was not in the record for the Sanders Court to review. Id. at 1136 (¶ 9) n. 6. Moreover, in the instant case, Coleman received his competency hearing — albeit after his trial. Coleman did not present any witnesses or evidence at the hearing, and the trial court found him to have been competent at the time of his trial. In Sanders, there had been no such determination for the Court to consider on review.

¶ 25. In response to my dissent, the plurality essentially points to the failures of both the State and Coleman to produce evidence. In Mississippi, the defendant bears the burden to prove incompetence to stand trial (Richardson v. State, 767 So.2d 195, 203 (¶ 41) (Miss.2000)), and to “ensure the record contains sufficient evidence to support his assignments of error on appeal.” Birkhead v. State, 57 So.3d 1223, 1230-31 (¶ 27) (Miss.2011) (citations omitted). That the defendant failed as to both of his burdens should not be twisted into grounds to grant him a new trial. Coleman could have produced evidence at the after-the-fact competency hearing, but did not. It would not have taken much to demonstrate the trial court’s error to have been harmful, rather than harmless, but he produced nothing. Perhaps Coleman could have proffered evidence at trial, even in the face of the trial court’s denial of a hearing, but he did not seek to do so and, as a consequence, we will never know. It was Coleman’s burden to make a record demonstrating that the trial court’s error harmed him, and he failed to carry it.

¶ 26. Accordingly, I believe the trial court’s failure to conduct a competency hearing in the case sub judice was error, but it was harmless error because the purposes of Rule 9.06 were satisfied. I would affirm the judgments of the trial court and the Court of Appeals.

WALLER, C.J., RANDOLPH, P.J., AND PIERCE, J., JOIN THIS OPINION.

      . Coleman was represented by Wanda Abioto at trial and by Eric Hessler at the retrospective hearing.

      . Pitchford's conviction was affirmed by this Court. See Pitchford v. State, 45 So.3d 216 (Miss.2010).


source: Caselaw Access Project

author: PIERCE, Justice,

license: Public Domain

text:
    Eboni Bena WHITE a/k/a Eboni White a/k/a Eboni B. White v. STATE of Mississippi.
    No. 2011-CT-00048-SCT.
    Supreme Court of Mississippi.
    Nov. 7, 2013.

      Cynthia Ann Stewart, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., Deirdre McCrory, Scott Stuart, attorneys for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. A Claiborne County jury convicted Eboni White of manslaughter, and the trial judge sentenced her to a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC). White now appeals to this Court claiming the trial court erred by: refusing to dismiss her indictment based on certain improper influences on the grand jury; prohibiting her expert witness, Jeffrey Curtis, from giving his opinion at trial on the use of force in self-defense; refusing to instruct the jury on her theory of self-defense; and not allowing her witness, Ricky Thompson, to testify because he was in the courtroom during Curtis’s testimony. Additionally, White challenges the weight and sufficiency of the evidence to support her conviction and argues cumulative error. The Court of Appeals affirmed, finding no error. Having granted certiorari on the issues of whether the trial court erred by excluding Ricky Thompson’s testimony and denying White’s jury instructions, we find error and reverse for a new trial. On certiorari, we limit our review to White’s claims that the trial court erred in not allowing Thompson to testify and by not allowing an instruction embodying the Castle Doctrine. Finding merit to both claims, we reverse White’s conviction and sentence and remand the case to the Claiborne Circuit Court for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts and history were adopted from the Court of Appeals’ majority opinion. Eboni White and the victim, Danielle Newsome, were students at Al-corn State University and had been friends since high school. They lived in trailer homes across the street from one another in a trailer park near Lorman, Mississippi. White lived with other roommates, and Newsome lived with her four-year-old son, Daniel. White and Newsome had a “falling out” when Newsome accused White of failing to stop for her child’s school bus one morning at the end of October 2009. The bus picked up Newsome’s child every morning and took him to a Head Start program. White remembers the incident as follows. That morning she was taking a football player to practice. She backed out of her driveway and stopped behind the bus. The bus’s lights were on, but it had no stop sign; so White drove around the bus, to its left, and drove to Alcorn’s campus. Shortly after returning home, White heard banging at her door. It was Newsome, who wanted to know if White had gone around the school bus. White said yes. Newsome exclaimed, “You almost hit my f* *king baby.” White responded that she came nowhere near the child. Newsome then threatened White: “If something happens to my baby, I[am] going to f* *k you up.” White did not think much of Newsome’s threat until later, when Newsome started a “campaign of harassment” against White. Newsome would call White a “b* * *h” every time she saw White. Additionally, Newsome told White the police were looking for her and her vehicle because of the bus incident.

¶ 8. Approximately one week after the bus incident, White filed a complaint for harassment with the Claiborne County Sheriffs Office against Newsome. Martha Lott, a dispatcher with the sheriffs office, filled out the complaint form for "White. White stated that on November 1, 2009, Newsome came to White’s trailer door and made threats because White had driven around the school bus. Further, every time White came home, Newsome was outside waiting for her, cursing and calling White names. While, normally, Lott would contact the law-enforcement authorities when a complaint was filed, this time she did not because White did not ask her to.

¶ 4. On the morning of November 12, 2009, at approximately 8:00 a.m., White started her vehicle, but she returned to her trailer with a case of beer her roommate had left in her vehicle, as she could not take it to school. She then heard banging at her door and Newsome threatening, “B* * *h, come outside. I’m going to get you. Come on. I know you are in there ... ain’t no way out. You’re going to see me today.” A neighbor also testified Newsome woke her by repeated yelling at White’s trailer something to the effect of: “B* * *h, I’m going to whoop your a* *. B* * *h, come out of there” for approximately fifteen to twenty minutes. Another neighbor overheard the commotion and was so concerned she called the police. White stayed in the trailer for approximately an hour and a half trying to avoid Newsome, missing a college calculus test at 9:00 a.m. White made numerous phone calls to her brother, mother, and father; however, she could not get in touch with them. White’s brother had dated Newsome; so White thought “he could talk to [Newsome] and figure out what was going on.” When White finally reached her father, he told her to forget about her calculus test and go immediately to the courthouse and file for a restraining order. Also, he told her to bring home her handgun, which White had bought for safety during road trips, as the trips were concluded.

¶ 5. At some point, White exited her trailer, with the handgun in the pocket of her backpack, heading toward the driver’s door of her vehicle. Newsome came forward from her trailer across the highway, approached the driver’s door of White’s vehicle, and blocked White’s access to her vehicle. The two exchanged words in White’s driveway, where White’s vehicle was parked. Witnesses recounted that Newsome again stated, “You tried to hit my baby,” and asked White, “Why did you try to run over my child?” White told Newsome- they had “discussed this already” and to “chill out,” but Newsome responded, “No, f* *k that. F* *k that. We fixing to discuss it again.” White stated that, as Newsome was approaching her, Newsome’s hand came up, and there was something silver in it, which White thought was a weapon. One eyewitness testified that White was cursing Newsome as well, calling her a “b* * *h” and stating she was “tired.” White then took her handgun from her backpack and shot Newsome several times. Law-enforcement officers arrived to hear gunshots and saw a crowd of people had gathered. Newsome fell to the ground. Officers told White to put the gun down, and she threw it towards them stating, “You can have it now.” As they were arresting White, someone said, “Ebo-ni, I told you to wait in the house. I told you to wait.” White, very upset, responded, ‘Y’all was taking too long ... [New-some] wouldn’t leave me alone.” New-some died from multiple gunshot wounds.

¶ 6. White was indicted for murder. She filed a motion to dismiss the indictment for improper influence by the grand-jury foreperson, who White claimed knew and disliked her. The trial court denied the motion. A three-day trial ensued in September 2010.

¶ 7. At the trial, several of White’s and Newsome’s neighbors testified. One neighbor testified that, on the morning of the shooting, he pulled up in his vehicle to where Newsome was standing, and she told him a young lady had tried to run over her child. The neighbor told New-some to “let it go” and return to her trailer. Newsome also tried to stop her child’s bus driver, who was coming through the trailer park at the time, to tell the driver that White had tried to run over her child. Newsome then approached one of White’s roommates who was outside. The roommate told Newsome she had nothing to do with the incident and to speak with White about it, and returned to her trailer.

¶ 8. Three neighbors testified they saw White shooting the gun. White, testifying on her own behalf, claimed she took the gun with her to take it home, on her father’s advice-not to shoot Newsome. Regarding the shooting, White claimed that she had witnessed Newsome’s capacity for violence in other prior instances and felt she had to protect herself. Newsome’s autopsy showed a total of five gunshot wounds: one to the head, three to the torso, and one to the thigh. No weapons were found on Newsome’s body.

¶ 9. The jury found White guilty of the lesser-included offense of manslaughter. The trial judge sentenced her to twenty years in the custody of the MDOC. White’s motion for judgment notwithstanding the verdict (JNOV) or a new trial was denied, and White appealed. In an eight-two decision, the Court of Appeals affirmed.

DISCUSSION

I. The trial court erred in not allowing one of White’s witnesses to testify because the witness had violated the sequestration rule.

¶ 10. White claims the trial court improperly excluded her eyewitness, Ricky Thompson, from testifying at trial because he violated the witness sequestration rule. Mississippi Rule of Evidence 615 governs witness sequestration. It provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This ride does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

M.R.E. 615. The purpose of witness sequestration is to (1) restrain witnesses from tailoring their testimony to that of earlier witnesses and (2) to aid in detecting testimony that is less than candid. Douglas v. State, 525 So.2d 1312, 1316 (Miss. 1988) (quoting Geders v. U.S., 425 U.S. 80, 87, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976)). The appellate court is limited to an abuse-of-discretion standard when reviewing an alleged sequestration violation. Whittington v. State, 748 So.2d 716, 719 (Miss.1999). “Reversal is not justified unless there is a showing of prejudice sufficient to constitute abuse of discretion on the part of the trial judge in not ordering a mistrial or not excluding testimony.” Id. (citing Douglas, 525 So.2d at 1318). When a witness has violated the rule, the trial court has discretion as to the proper remedy. Finley v. State, 725 So.2d 226, 233 (Miss.1998) (citing Douglas, 525 So.2d at 1317).

¶ 11. At trial, White sought to call Ricky Thompson as a witness. The State objected, however, because Thompson had been in the courtroom for at least part of Curtis’s testimony. White argued that Thompson would testify about the events surrounding the shooting and would not touch on anything about which Curtis had testified. Nevertheless, the trial court sustained the objection. The trial judge said, “[T]he rule was invoked, and if [Thompson has] been in the courtroom, I won’t let him testify.”

¶ 12. Later, White proffered that Thompson “would testify as to the circumstances surrounding the shooting with respect to what he saw and heard. The purpose of this testimony would be to support [White’s] claim of self defense. And it would not relate in any manner to the testimony of Curtis.”

¶ 13. In Douglas, this Court addressed the proper remedy when a trial judge knows that the sequestration rule has been violated before the witness testifies citing for guidance federal law regarding Rule 615 of the Federal Rules of Evidence, upon which Mississippi Rule of Evidence 615 is modeled:

The federal courts have noted that the best remedy for violation of the Rule occurs at trial. At trial two situations generally arise where the trial court is called upon to deal with sequestration violations. First, there is the situation, as in this case, where the trial judge knows before the witness testifies that the witness is in violation of the Rule. As the Court of Appeals for the Fifth Circuit states, failure of a witness to comply with a sequestration order does not alone render his testimony inadmissible. U.S. v. Suarez, 487 F.2d 236, 238 (5th Cir.1973). Whether to exclude the witness is left to the sound discretion of the judge. U.S. v. Warren, 578 F.2d 1058, 1076 (5th Cir.1978). Warren goes on to say that the judge should not exclude witnesses unless he determines that the testimony will result in probable prejudice to the other party. Warren 578 F.2d at 1076, n. 16. In U.S. v. Blasco, 702 F.2d 1315 (11th Cir.1983), the Eleventh Circuit summarized that striking testimony is a serious sanction, appropriate only where a party has suffered actual prejudice and there has been connivance by the witness or counsel to violate the rule. Blasco, 702 F.2d at 1327. The more appropriate sanction is a “full-bore cross-examination” of the witness on the facts of the violation of the Rule. U.S. v. Jimenez, 780 F.2d 975, 981 (11th Cir.1986). Furthermore, the trial court could adequately respond to the possibility of prejudice by specifically instructing the jury that a violation of the Rule should be considered in evaluating the credibility of the witness. Jimenez, 780 F.2d at 981; see also U.S. v. Cox, 752 F.2d 741, 748 (1st Cir.1985).

Douglas, 525 So.2d at 1317.

¶ 14. This Court has held that, if the witness did not deliberately attempt to circumvent the sequestration rule, the appropriate remedy is to allow defense counsel an opportunity to cross-examine the witness fully about the rule violation. Brown v. State, 682 So.2d 340, 349 (Miss. 1996). The U.S. Supreme Court has held that:

If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground, merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.

Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893) (citations omitted) (emphasis added). The United States Court of Appeals for the Fifth Circuit has defined “particular circumstances” to mean that “the witness should be disqualified only when he has violated the sequestration order with ‘the consent, connivance, procurement or knowledge of the [defendant] or his counsel.’ ” Braswell v. Wainwright, 463 F.2d 1148, 1152-53 (5th Cir.1972) (quoting United States v. Schaefer, 299 F.2d 625, 631 (7th Cir.1962)).

¶ 15. As the Fifth Circuit noted, defendants have a fundamental right to the compulsory process of witnesses. Braswell, 463 F.2d at 1153-54 (citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). In Bras-well, the defendant’s sole corroborating witness was prevented from testifying because the witness had been present in the courtroom during the aggravated-assault victim’s testimony. Braswell, 463 F.2d at 1150, 1155. No proffer was made, and the witness died after the trial. Id. The United States Court of Appeals for the Fifth Circuit affirmed the district court’s grant of habeas relief. Id. at 1149. It held that the exclusion of the witness’s testimony had violated the defendant’s fundamental, constitutional right to call witnesses on his behalf. Id. at 1154. Though the defendant’s counsel had invoked the rule, the court found that the defendant had not waived his Sixth Amendment right to the compulsory attendance of witnesses by his counsel having done so. Id. Such waiver is proper, the court said, only if the defendant makes a knowing, intelligent, express waiver, or the witness violates the rule with the “knowledge, procurement, or consent” of the defendant or his or her counsel. Id. at 1154-55. As for the absence of a formal proffer, the court found that the defendant’s attorney’s testimony during the habeas hearing was sufficient. Id. at 1155. The attorney testified that the witness would have corroborated the defendant’s version of events and that the testimony was important. Id. at 1152, 1155. The court said that the defendant’s right to due process entitled him to present “crucial” evidence of his sole corroborating witness to the jury. Id. at 1155-56. The Fifth Circuit summarized:

[W]e think that only where some overriding policy consideration is shown for the exclusion of a witness or where it can be shown that the defendant made a[n] [intentional, knowing] waiver of his sixth amendment right can a trial court properly exclude a vital witness for violation of the rule. The “consent, connivance, procurement or knowledge of the defendant or his counsel” in the unauthorized presence of the witness would certainly seem to be valid reasons for exclusion.

Braswell, 463 F.2d at 1156.

¶ 16. Here, the Court of Appeals held that the trial court did not abuse its discretion in excluding Thompson as a witness. White v. State, 127 So.3d 241, 260 (Miss.Ct. App.2012). It opined that White presented a complete defense by calling fifteen witnesses during her case-in-chief; that nothing in the proffer showed a significant fact that was not presented by another witness; and that White could not show that she had been prejudiced by Thompson’s exclusion. Id.

¶ 17. Admittedly, Thompson’s testimony does not appear to be as crucial to White’s defense as the excluded testimony was in Braswell — White did, in fact, call a total of fifteen witnesses. Even so, only two of the witnesses called were eyewitnesses. Thompson would have been a third, and the details of his testimony are unknown.

¶ 18. We find that the trial court abused its discretion in this instance by excluding Thompson’s testimony for no basis other than a violation of the sequestration rule. The trial court should have made a determination as to the prejudicial effect of the violation. Brown, 682 So.2d at 849. We decline, however, to decide whether this error constituted reversible error. As will be explained in the following issue, we also find that White was denied her right to have the jury properly instructed on her self-defense claim, which was reversible error.

II. The trial court erred in refusing to instruct the jury on Defendant’s theory of the case.

¶ 19. White claims the trial court erred by refusing to allow her to submit a jury instruction which would have encompassed her theory of self-defense concerning the Castle Doctrine. The standard of review for the denial of a jury instruction is abuse of discretion. Davis v. State, 18 So.3d 842, 847 (Miss.2009). “[T]he defense is entitled to an instruction covering the theory of the case so long as there is evidence in the record that would support that theory without regard to the probative value of that evidence so long as it is more than a mere scintilla of proof.” Lester v. State, 862 So.2d 582, 586 (Miss. Ct.App.2004) (citing McGee v. State, 820 So.2d 700, 705 (Miss.Ct.App.2000)).

¶ 20. The Court of Appeals majority found that the trial court did not abuse its discretion in denying White’s instruction because she failed to provide evidence supporting her self-defense theory. Believing the driveway where Newsome was killed was a “common” or public driveway, the Court of Appeals found no evidence to support a trespass claim, and thus no basis for allowing a jury instruction predicated on the Castle Doctrine. The jury-instruction conference was not transcribed; therefore, the reasons the trial court refused these instructions are not known. White v. State, 127 So.3d 241, 249, n. 3 (Miss.Ct.App.2012).

¶ 21. White’s proposed instruction set forth the “Castle Doctrine” statutory presumption, as codified in Mississippi Code Section 97-3-15(3). That section provides that:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties[.]

Miss.Code Aim. § 97-3-15(8) (Rev.2006).

¶ 22. Based on our review of the record, enough evidence was presented at White’s trial to at least raise a question as to whether White was entitled to the “Castle Doctrine” statutory presumption codified by Section 97-3-15. As the Court of Appeals dissent pointed out:

[T]he record shows that the incident took place in the immediate vicinity of White’s home, right next to White’s vehicle. In fact, after Newsome spotted White walking to her vehicle, Newsome crossed the street and arrived at the vehicle before White even reached it. White’s vehicle was parked in front of her trailer in an area referred to as a “common driveway.” White shared the driveway with roommates and residents of the trailer next door. Newsome, however, lived across the street, and did not share this driveway with White. Although the driveway was a “common” driveway, it was only common to those residents who shared it, which did not include Newsome. A question arises to whether Newsome was trespassing when she crossed the street, came onto the property surrounding White’s residence, and prevented White from leaving by blocking White’s access to her vehicle. This question should have been presented to the jury.

White, 127 So.3d 241, 261 (¶ 59) (Russell, J., dissenting) (emphasis added).

¶ 23. We agree with the Court of Appeals dissenters. Given the evidence presented at trial, White was entitled to an adequate jury instruction setting forth Section 97-3-15(3)’s statutory presumption and its attending prerequisites as prescribed by that section.

CONCLUSION

¶ 24. We reverse the judgments of the Court of Appeals and the circuit court, and remand the case to Claiborne County Circuit Court for further proceedings consistent with this opinion.

¶ 25. REVERSED AND REMANDED.

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

      . Testimony at trial showed the silver object could have been Newsome’s cell phone, which White's father found lying on the windshield of White's vehicle later that day.


author: DICKINSON, Presiding Justice, PIERCE, Justice,

text:
    John Bartholomew LOWE a/k/a John B. Lowe v. STATE of Mississippi.
    No. 2011-CT-00762-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.

      Office of State Public Defender by Hunter N. Aikins, Leslie S. Lee, John Bartholomew Lowe (pro se), attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.

¶ 1. The State indicted John Bartholomew Lowe on five counts of exploitation of a child, alleging that he had downloaded sexually explicit images and videos of children via the internet to his laptop computer. Because the State had no direct evidence that Lowe had downloaded the images, its case depended on the opinions of its expert witness.

¶ 2. Lowe contended that several others had access to his computer, and that someone else had downloaded the material. He requested funds to hire an expert to assist him in refuting the opinions of the State’s expert. Because the trial court denied Lowe’s request, thereby depriving him of the opportunity to prepare an adequate defense, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 8. After law enforcement authorities discovered sexually explicit images of children on Lowe’s computer, the grand jury indicted him on five counts of exploitation of a child. Each count alleged that on June 6, 2009, Lowe downloaded sexually explicit images or videos of children under the age of eighteen via the internet to his laptop computer. Thereafter, the trial court entered an arraignment order, determining that Lowe was indigent and appointing him counsel.

¶ 4. During the law-enforcement investigation concerning the allegations against Lowe, Tom Thomas, an expert in computer forensics, performed a forensic examination of Lowe’s laptop for the State. Prior to trial, Lowe filed several motions requesting funding for an expert of his own to perform a forensic computer examination and prepare a defense to Thomas’s findings.

¶ 5. Lowe first raised his need for an expert in a motion for continuance filed March 18, 2010. Therein, Lowe argued that he needed additional time to prepare his defense so that he could obtain an expert to examine the computer’s hard drive. That same day, Lowe filed a motion for funds to hire a computer expert. In that motion, Lowe argued that, because the State’s expert had examined his hard drive and allegedly had found illegal material, he needed an expert to refute those allegations. He informed the court that he was an indigent defendant and would be unable to afford to pay his own expert.

¶ 6. Lowe informed the court that an expert would be necessary to “examine the hard drive which is alleged to have come from his computer to determine who could have downloaded the pictures and video clips onto his computer” and “to determine when the material was downloaded and under whose user name and password the alleged child pornography was accessed.” Lowe averred that his expert was necessary “to properly meet the charges against him,” and that granting a continuance and providing funds to obtain an expert would cause no harm to the State. Finally, Lowe presented an estimate of $1,500 as the cost to obtain the necessary expert. Thereafter, at a motion hearing before the trial court, the State agreed to a continuance so Lowe could attempt to obtain funds for an expert and review discovery, but the trial court failed to rule on the motion for funds.

¶ 7. Then, on May 27, 2010, Lowe filed a second motion for continuance. In this motion, Lowe asserted that, following his previous motion for funds, the trial court had instructed Lowe’s counsel to speak with the State’s expert. Lowe informed the court that the State’s expert had refused to discuss the specifics of his forensic examination and had agreed to meet with Lowe’s counsel less than two weeks before trial. Lowe averred that, without an expert of his own, counsel would lack the requisite knowledge to question the State’s expert properly. Lowe also reasserted his prior argument that he required an expert “to determine the presence or absence of other user names and passwords” and “the time the alleged pornography was added to the computer.” Finally, Lowe argued that a continuance was “absolutely necessary” so that he could obtain an expert and give that expert the requisite time to analyze the hard drive.

¶ 8. On June 3, 2010, the trial court denied Lowe’s motion for expert funds. On June 8, 2010, the trial granted Lowe’s continuance following a hearing on that motion. During that hearing, the trial judge instructed Lowe’s counsel that he needed to consult with the State’s expert before the court would burden the State with funding a defense expert. Lowe’s counsel responded that he could not adequately prepare to question the State’s expert without the knowledge of a defense expert. On November 9, 2010, the trial court entered a second order denying expert funds.

¶ 9. On April 11, 2011, the case proceeded to trial. Marie Taylor testified that she and her two daughters had resided with Lowe for some time. She testified that they each used Lowe’s computer under various user names and passwords. Further, she explained that Lowe never refused anyone access to his computer and that, on at least one occasion during a party, numerous visitors had access to the computer. Finally, she testified that, to her knowledge, Lowe had never downloaded pornography.

¶ 10. Lowe’s employer testified that on June 6, 2010, Lowe worked alone at a Masonite Corporation plant. The investigating officer testified that he and the State’s computer forensics expert drove around near that plant and found several unprotected internet networks that Lowe could have used to download the content.

¶ 11. Finally, Tom Thomas, the State’s expert, testified that all five of the files in question were saved under Lowe’s user name and password. He also testified that it appeared the files were downloaded through unprotected networks, including an unprotected network at a McDonald’s near the Masonite plant. Finally, Thomas opined that the “digital fingerprint” pointed to Lowe as the individual who had downloaded the files. Thomas did acknowledge, however, that someone could have placed the content on Lowe’s computer from a different computer and that someone else could have downloaded the content using Lowe’s user name and password. But Thomas testified that, in his opinion, neither of those was likely here.

¶ 12. The jury convicted Lowe of all five counts. The circuit court found Lowe to be a habitual offender and sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. Lowe appealed, arguing that the trial court had erred by denying the requested expert funds, that it had erred by denying his request to voir dire the State’s expert in front of the jury, and that the verdict was against the overwhelming weight of the evidence. The Mississippi Court of Appeals affirmed and we granted certiora-ri.

ANALYSIS

¶ 13. The United States Supreme Court “has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.” We have echoed this principle, holding that a trial court must provide expert assistance to an indigent defendant when denial of such assistance would render the trial fundamentally unfair. Here, the circuit court deprived Lowe of a fundamentally fair trial by denying him the assistance of a computer forensics expert when the State relied exclusively on its own expert to identify Lowe as the perpetrator of the offenses charged. Accordingly, we reverse and remand for a new trial.

¶ 14. We will not hesitate to reverse a trial court’s denial of expert assistance to an indigent defendant when the lack of expert assistance denied the defendant due process such that the trial was rendered fundamentally unfair. The determination of whether an indigent defendant must be provided expert funding is made on a case-by-case basis, and “[a] defendant must demonstrate a substantial need in order to justify the trial court expending public funds for an expert to assist the defense.”

¶ 15. The Court of Appeals concluded that Lowe had failed to make the necessary substantial showing of need by failing “to articulate an issue, an element, or any desired testimony requiring independent expert assistance.” Instead, the Court of Appeals found that Lowe had presented only “undeveloped assertions” and that the trial court did not deprive Lowe of a fundamentally fair trial because Lowe had the opportunity to interview the State’s expert.

¶ 16. In Ake v. Oklahoma, the United States Supreme Court addressed an indigent defendant’s claim for funds to obtain an examination by a psychiatrist in order to prepare a defense based on the defendant’s mental condition. The Court identified the source of the right at stake, stating:

This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

Then, after discussing its decisions entitling indigent defendants to copies of trial transcripts, waiver of appellate filing fees, counsel, and effective assistance thereof, the Court stated:

Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.

The Court also stated “fundamental fairness entitles indigent defendants to ‘an adequate opportunity to present their claims fairly within the adversary system’ ” and that courts implement this principle by identifying the tools of an adequate defense and providing them to indigent defendants.

¶ 17. The Court then proceeded to determine whether the requested psychiatrist was a basic tool of an adequate defense. The Court identified three relevant factors for that determination:

The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

¶ 18. Applying those factors, the Ake Court found an individual’s interest in accurate criminal proceedings “uniquely compelling,” and weighing heavily in the analysis, and that the State’s only interest against funding a defendant’s expert is the insubstantial interest of avoiding the financial cost. The Court pointed out that the State’s interest in prevailing at trial is tempered by the fact that the State has a greater interest in seeing fair and accurate resolution of criminal cases.

¶ 19. Finally, the Ake Court determined that the probable value of the requested psychiatrist was great because the defendant’s psychiatric condition was relevant to his criminal culpability, and the defendant’s psychiatrist could have gathered facts and drawn probable conclusions about the defendant’s condition. The psychiatrist also would have known “the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers.”

¶ 20. Here, the Court of Appeals correctly noted that this Court applies Ake on a case-by-case basis — reviewing the trial judge’s determination for an abuse of discretion — rather than as a bright-line rule entitling indigent defendants to expert assistance on demand But to conclude that the facts of this case do not give rise to a substantial need for the requested expert would be contrary to the dictates of Ake.

¶ 21. Here, the State could not have convicted Lowe simply by showing the sexually explicit images and videos were on his computer. It had the burden to prove beyond a reasonable doubt that Lowe, himself, downloaded them. The State presented its case without the testimony of any lay witness purporting to have knowledge that Lowe downloaded the files in question. Instead, the State relied solely on the opinions of its expert witness to establish that the files existed on Lowe’s laptop and that Lowe, rather than another individual using his laptop, downloaded the images from the internet.

¶ 22. Anticipating this reliance on expert testimony by the State, Lowe’s counsel repeatedly explained to the trial court its specific needs for an independent expert in computer forensics. Lowe’s counsel argued that he needed an expert to examine the computer’s hard drive and to refute the State expert’s allegations that the hard drive contained pornographic images of children. He further argued that an expert was necessary to determine who downloaded the content and under what user name and password.

¶ 28. Finally, as the United States Supreme Court found vitally important in Ake, counsel argued that Lowe needed an expert to provide him with the requisite information to adequately question the State’s expert. Ironically, both the trial court and the Court of Appeals seem to opine that Lowe’s counsel should have been able to articulate problems with the State expert’s opinion by questioning that expert pretrial, but before obtaining an expert to provide the necessary knowledge to know what questions to ask. This view presupposes that the State’s expert would have assisted Lowe in deciding whether his opinions could be successfully attacked by another expert. Stated another way, had Lowe’s counsel asked the State’s expert: “Sir, do you think that another expert appointed by the court to assist Mr. Lowe could successfully attack some of your opinion?” we think the answer— which probably would have been “no”— would have been unhelpful in our analysis.

¶ 24. Considering each of the reasons articulated by trial counsel, the probable value of an independent defense expert must weigh heavily in favor of a substantial need for a state-funded independent expert. And, as in Ake, both the State and the defendant have interest in an accurate resolution of this criminal case. The State’s interest in avoiding the cost of providing an independent expert cannot overcome those needs. Where, as here, the State relies on expert testimony alone to connect the defendant to the offense charged, an independent defense expert is part of the “raw materials integral to building an effective defense,” and the trial judge deprives an indigent defendant of a fundamentally fair trial by refusing him funds to procure such an expert.

¶ 25. In attempting to demonstrate why it believes Lowe did not need an expert, the dissent refers to “the overwhelming evidence presented against Lowe.” But the “overwhelming” evidence listed by the dissent primarily consists of opinions provided by the State’s expert. We find this argument unpersuasive.

CONCLUSION

¶ 26. Because the trial court’s denial of Lowe’s requested expert funds denied him the opportunity to prepare an adequate defense, the decision rendered Lowe’s trial fundamentally unfair. Accordingly, we reverse the judgment of the Court of Appeals, and we also reverse Lowe’s conviction in the trial court on five counts of exploitation of a child. We remand this case to the Jones County Circuit Court for a new trial. In preparation for that trial, the trial court shall provide Lowe funds to obtain an expert in computer forensics.

¶ 27. REVERSED AND REMANDED.

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

PIERCE, Justice,

dissenting:

¶ 28. The majority opinion holds that, in instances where the State’s expert witness is the sole connection between the defendant and the crime, the trial court must provide the defendant funding for an “independent defense expert” to aid in forming its defense, and denial deprives the defendant of a fair trial. It is well-established that no bright-line rule exists; thus we must decide on a case-by-case basis whether funding an expert is required. King v. State, 960 So.2d 413, 421 (Miss.2007) (citing Harrison v. State, 635 So.2d 894, 901 (Miss.1994) (quoting Johnson v. State, 529 So.2d 577, 590 (Miss. 1988))). I do not agree that the expert testimony alone was the only evidence connecting Lowe to the crime; therefore, I do not believe the facts of the case before us necessitate implementing such a far-reaching principle. Ake v. Oklahoma, 470 U.S. 68, 87, 105 S.Ct. 1087, 1098, 84 L.Ed.2d 53 (1985) (Rehnquist, J., dissenting stating the majority’s holding was too broad and should be limited in scope not to encompass a mere “defense consultant”).

¶ 29. I disagree with the majority’s determination that the probable value of an independent defense expert, in this case, weighs heavily in favor of a substantial need for a state-funded defense expert when considering: (1) the overwhelming evidence presented against Lowe, (2) defense counsel’s ability to present evidence in Lowe’s favor, and (3) defense counsel’s ability to adequately cross-examine the State’s expert.

¶ 30. The evidence presented showed Lowe owned the computer, and although he shared the use of the computer, he had the ability to possess the computer when he so desired. Lowe had a password-protected user account on the computer entitled “Muzicman,” which the computer forensic examiner testified was the account used to download the images. The expert and the sheriff confirmed that an investigation revealed many available unprotected WiFi networks at and around Lowe’s place of employment, one of which was the McDonald’s network used to download the images. Lowe’s employer testified that Lowe was present at work on the day the images were downloaded. Lowe’s employer stated that Lowe was a “reliable punctual employee” until July 1, 2009, when he ceased working without notice and did not return. Lowe abruptly fled to California during the time investigators were seeking to obtain the computer.

¶ 31. Evidence also was presented by the defense that substantially supported Lowe’s innocence. The computer was not in Lowe’s possession when obtained by investigators, Lowe’s employer had never personally seen him with a computer, the computer was shared with other individuals, and the computer forensic expert stated that it was possible that someone other than Lowe could have downloaded the images on the computer. King v. State, 960 So.2d at 422-423 (defendant was not supplied his own defense expert because the State’s expert rebutted the State’s argument during cross-examination by conceding that a alternate possibility existed) (citing Holland v. State, 705 So.2d 307, 333 (Miss.1997)).

¶ 32. Defense counsel admitted that he had met with the expert prior to trial. The expert provided testimony to rebut the State’s argument, and a review of the record supports that the defense attorney was not weakened in his abilities to cross-examine or prepare for the defense. Therefore, because the expert rebutted the State’s argument, there is no indication of bias or prejudice on the part of the expert witness. Further, there is no indication that a defense expert would have provided additional information supporting the premise that someone other than Lowe downloaded the material.

¶ 33. Accordingly, I respectfully dissent from the majority’s opinion, because these facts do not support that a substantial need existed for a State-funded defense expert nor that Lowe was denied a fundamentally fair trial.

RANDOLPH, P.J., JOINS THIS OPINION.

      . Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

      . Lowe v. State, - So.3d -, - (Miss.Ct. App. Sept. 18, 2012).

      . Ake, 470 U.S. at 76, 105 S.Ct. 1087.

      . Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss. 1991) (quoting Johnson v. State, 529 So.2d 577, 590 (Miss. 1988)).

      . Fisher, 587 So.2d at 883.

      . Richardson v. State, 767 So.2d 195, 198 (Miss.2000) (citing Coleman v. State, 697 So.2d 777, 782 (Miss. 1997) (citing Davis v. State, 374 So.2d 1293, 1297 (Miss. 1979))).

      . Richardson, 767 So.2d at 198 (citing Holland v. State, 705 So.2d 307, 334 (Miss.1997)).

      . Lowe, - So.3d at -.

      . Id.

      . Ake, 470 U.S. at 70, 105 S.Ct. 1087.

      . Id. at 76, 105 S.Ct. 1087.

      . Id. (citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)).

      . Ake, 470 U.S. at 76, 105 S.Ct. 1087 (citing Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959)).

      . Ake, 470 U.S. at 76, 105 S.Ct. 1087 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)).

      . Ake, 470 U.S. at 76, 105 S.Ct. 1087 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

        .Ake, 470 U.S. at 77, 105 S.Ct. 1087.

      . Ake, 470 U.S. at 77, 105 S.Ct. 1087 (quoting Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)).

      . Ake, 470 U.S. at 77, 105 S.Ct. 1087 (citing Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971)).

      . Ake, 470 U.S. at 77, 105 S.Ct. 1087 (citing Little v. Streater, 452 U.S. 1, 6, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981)).

      . Ake, 470 U.S. at 78, 105 S.Ct. 1087.

      . Id. at 79, 105 S.Ct. 1087.

      . Id.

      . Id. at 80, 105 S.Ct. 1087.

      . Lowe, - So.3d at - (citing Fisher, 587 So.2d at 883).


author: KING, Justice,

text:
    Toney JENNINGS a/k/a Tony Jennings a/k/a Tony Jenning v. STATE of Mississippi.
    No. 2011-CT-01313-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.

      Office of State Public Defender by George T. Holmes, Leslie S. Lee, attorneys for appellant.

      Office of the Attorney General by Lisa L. Blount, Scott Stuart, attorneys for ap-pellee.
   ON WRIT OF CERTIORARI

KING, Justice,

for the Court:

¶ 1. After being convicted by a Lowndes County Circuit Court jury for statutory rape and resisting' arrest and being sentenced to fifteen years for statutory rape, with ten years to serve and five years suspended, as well as six months for resisting arrest, Toney Jennings appealed his statutory-rape conviction. The Court of Appeals affirmed his conviction. We granted Jennings’s petition for certiorari to determine whether the trial court erred in admitting Jennings’s arguably involuntary statement to police into evidence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 9, 2010, J.S., then thirteen years old, called law-enforcement authorities, alleging that she had been raped by her neighbor, Toney Jennings, who was sixteen years old at the time. Lowndes County Sherriffs Deputy Mark McGarity responded to the call. Deputy McGarity spoke with J.S., then waited for backup before questioning Jennings. While waiting for backup, he observed Jennings exit his grandmother’s home. Deputy McGarity told Jennings that he needed to speak with him, and Jennings attempted to run away, shoving Deputy McGarity incidental to his attempt to run. Shortly thereafter, Jennings stopped running, and Deputy McGarity placed him under arrest for assaulting a police officer.

¶ 3. At the police station, Detective Eli Perrigin and Lieutenant Tony Perkins interrogated Jennings. They made an audio recording of the interrogation. The first thirty-eight seconds of the audio recording consisted of Detective Perrigin gathering biographical information from Jennings and documenting that biographical information on the Miranda, warnings and waiver form. When Detective Perri-gin asked Jennings what grade he was in, Jennings responded “Ninth going to Tenth.” On “Education Level” on the Miranda form, Detective Perrigin then wrote “10th,” a troubling mistake given that “Education Level” is commonly understood as the highest education level completed, and Jennings had not yet begun the tenth grade. At thirty-nine seconds, Detective Perrigin asked Jennings, ‘You don’t have an attorney right now I would think, right?” Jennings did not respond with a “yes” or a “no,” but rather made an unresponsive statement to the effect that this was the second time “this” had happened. Detective Perrigin wrote “No” as to whether Jennings had an attorney on the Miranda form, despite Jennings never having answered the question as to whether he had an attorney. At forty-five seconds, Detective Perrigin stated that, before he asked Jennings any questions, Jennings had to understand his rights. At forty-eight seconds, Detective Perrigin began reading the Miranda form, nearly verbatim, although he skipped a few words. He offered no explanation of any of the Miranda warnings, nor did he ask Jennings if he understood each individual right, or even the rights as a whole. He finished reading the Miranda warnings, then stated “this” was a waiver of rights, and proceeded to read the Waiver of Rights form nearly verbatim, with no explanation of the waiver. At 1:41, after spending less than a minute going over Jennings’s rights and waiver thereof, Detective Perrigin finished reading the forms and asked “You understand all that, don’t you?” Jennings responded by asking “Um, the part about an attorney. What’s attorney?” In the approximately fifty-three seconds Detective Perrigin spent rotely reading the Miranda warnings and waiver of rights form, he used the word “attorney” seven times. At 1:49, Detective Perrigin summarily answered, “It’s a lawyer.” Then, without further response from Jennings, at 1:53, Detective Perrigin stated “Sign that for me right there,” and Jennings complied. Jennings never stated that he understood any of the forms or rights. Detective Perrigin seems to have decided that Jennings understood because, after he asked him if he understood and Jennings responded by asking what an attorney was, Jennings asked no further questions. But Jennings never affirmed or stated or responded that he understood anything that had been so speedily and summarily read to him.

¶ 4. During the interrogation, Detective Perrigin and Lieutenant Perkins indicated that they could not help Jennings avoid a high bond unless he “told the truth;” they indicated several times that telling “the truth” would be better for Jennings; and they indicated that Jennings would feel better if he told “the truth.” The entire time, they told him what they believed the truth was, informing him as to what “truth” they wanted to hear. Further, when Detective Perrigin read Jennings the statements that he had written for Jennings, Jennings attempted to correct him at several points, and Detective Perrigin dismissed most of Jennings’s corrections and objections to the written statements. Additionally, at about forty-eight minutes into the audio recording of Jennings’s statement, he may have stated “I’m done” twice. At about 50:30, Jennings asked “Do you gotta keep on talking to me?” The interrogation lasted seventy minutes and resulted in three written statements.

¶ 5. Jennings was charged with statutory rape and assaulting a police officer. At trial, Jennings moved to suppress the audio recording of his interrogation and the resulting written statements. The jury was excused, and the court heard testimony from Detective Perrigin and Lieutenant Perkins. The court also listened to a portion of the audio recording of the interrogation, apparently listening only to the first few minutes of it. The trial court summarily overruled the motion to suppress, without making any findings, merely stating “Court’s going to overrule the motion to suppress.” The jury ultimately convicted Jennings of statutory rape and of resisting arrest (a lesser-included offense of assaulting a police officer). Jennings appealed his conviction, and the Court of Appeals affirmed. Jennings then filed a petition for certiorari with this Court, raising several issues, which we granted. We may limit the issues we address upon a grant of certiorari. Jones v. State, 95 So.3d 641, 645 (Miss. 2012); M.R.A.P. 17(h). Thus, we choose to address only the issue of whether the trial court erred by failing to grant Jennings’s motion to suppress his statement to police.

ANALYSIS

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

¶ 7. “[A] suspect may waive his Fifth Amendment privilege, provided the waiver is made voluntarily, knowingly and intelligently.” Spring, 479 U.S. at 573, 107 S.Ct. 851 (internal quotations omitted). “The inquiry whether a waiver is coerced has two distinct dimensions.” Id. at 573, 107 S.Ct. 851. First, the waiver must be voluntary, in that it must be a choice made freely and deliberately, without intimidation, coercion, or deception. Id. Second, the waiver must be knowing and intelligent, thus “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). Courts must examine the totality of the circumstances to determine whether a waiver of rights was voluntary, knowing, and intelligent. Spring, 479 U.S. at 573, 107 S.Ct. 851; Williams v. State, 115 So.3d 774, 778 (Miss.2013).

¶ 8. “A criminal defendant who challenges the voluntariness of [his] waiver [of rights] has a due process right to a reliable judicial review of whether the confession was, in fact, voluntarily given.” Pitchford v. State, 45 So.3d 216, 242 (Miss. 2010) (emphasis added); see also Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The prosecution then bears the burden of proving beyond a reasonable doubt that a statement was given after a valid waiver, and was thus voluntary, knowing, and intelligent. Jordan v. State, 995 So.2d 94, 106 (Miss.2008). “When an accused makes an in-custody inculpatory statement without the advice or presence of counsel, even though warnings and advice regarding his privilege against self-incrimination have been fully and fairly given, the State shoulders a heavy burden to show a knowing and intelligent waiver.” Williams, 115 So.3d at 778 (quoting Neal v. State, 451 So.2d 743, 753 (Miss.1984)).

¶ 9. The totality-of-the-circumstances approach mandates inquiry into all the circumstances surrounding the interrogation, including those surrounding the interrogation of a juvenile. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979); McGowan v. State, 706 So.2d 231, 235 (Miss.1997). Evaluating the circumstances surrounding the interrogation “includes [an] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare, 442 U.S. at 725, 99 S.Ct. 2560; McGowan, 706 So.2d at 235. Furthermore, “when faced with an accused of limited intelligence, the trial court must inquire into the mental capacity of the accused to determine whether the accused even had the mental capacity to understand and waive his Miranda warnings.” McGowan, 706 So.2d at 236 (emphasis added).

¶ 10. The determination of whether a confession was voluntary is highly factual, and a trial court’s decision that a confession is admissible should be overruled on appeal only if the trial court committed manifest error, the decision was contrary to the overwhelming weight of the evidence, or the court applied the incorrect legal standard. Williams, 115 So.3d at 778; McCarty v. State, 554 So.2d 909, 912 (Miss.1989). However, when the trial court fails to make specific findings of fact regarding voluntariness, “this Court’s scope of review is considerably broader.” McCarty, 554 So.2d at 912.

¶ 11. The State failed to prove beyond a reasonable doubt that Jennings’s waiver and statement were voluntary, given the many problematic issues with each. First, the waiver of Miranda rights in this case is highly suspect because:

1) the accused was a functionally illiterate juvenile in Special Education;

2) the rights were read in an extremely quick and summary manner, taking approximately fifty-three seconds;

3) the rights were not explained, but rather, Detective Perrigin gave only a rote recitation of the rights and waiver;

4) Detective Perrigin failed to ask whether Jennings understood each individual right, and indeed failed to ask whether he understood all the Miranda rights as a whole. Detective Perrigin did not ask Jennings if he “understood” anything until after he had read him all of his rights and the waiver of rights;

5) Jennings never stated that he understood his rights or the waiver thereof;

6) Jennings asked what an attorney was, clearly indicating that he had not understood a basic and essential ingredient of the rights and waiver, and Detective Perrigin summarily and inadequately answered his question;

7) Detective Perrigin exaggerated Jennings’s education level on the form, despite Jennings’s repeated statements that he was “going into tenth grade.”

¶ 12. The trial court summarily overruled Jennings’s motion to suppress, without making any findings that the waiver was voluntary, knowing, and intelligent, and it certainly made no indication that it evaluated the juvenile’s age, experience, education, background, and intelligence, and whether he had the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. Nor did it evaluate his mental capacity. Because the trial court is the ultimate fact-finder on issues of the voluntariness of a confession, and because the trial court made no findings of fact after a fairly short mid-trial suppression hearing, the record is undeveloped in this case. Further, because of the lack of findings and summary nature of the trial court’s ruling, this Court cannot determine whether the trial court employed the correct legal standard in overruling the motion to suppress. Indeed, we recognize that, although defense counsel raised issues about reading, mental abilities, and improper interrogation techniques, the portions of the confession relevant to those issues do not appear to have been played during the suppression hearing. Rather, the State selectively played only the portion of the recording related to the Miranda waiver. Even standing alone, though, this small portion of the audio recording is highly problematic.

¶ 13. Additionally, the bulk of the confession was not examined for voluntariness at the suppression hearing, as it does not appear that the trial court heard it until it was introduced into evidence in front of the jury, despite the defendant raising these issues during cross-examination. This oversight, combined with the arguably overreaching interrogation techniques and Jennings’s possible invocations of the right to silence, fill us with a sense of disquiet. See Agee v. State, 185 So.2d 671, 674 (Miss.1966) (telling the defendant that “it would be lighter on him if he’d tell the truth” rendered a confession inadmissible because it offered the accused “some hope of reward” or “hope of leniency”); Carley v. State, 739 So.2d 1046, 1053 (Miss.Ct. App.1999) (mental weakness coupled with overreaching interrogation tactics “may become the basis for the exclusion of a confession”). It is also of concern that when Jennings corrected Detective Perri-gin in regard to the written statements, Detective Perrigin by and large brushed off Jennings’s concerns, and told him to sign the written statements without making most of the corrections. Again, however, the state of the record is undeveloped and unclear on these issues, and findings of fact absent, rendering it imprudent for this Court to make a factual judgment that the waiver or statements were involuntary.

¶ 14. The State clearly failed to prove beyond a reasonable doubt that Jennings’s waiver and statement were voluntary, knowing, and intelligent, given the many problems surrounding the waiver and the dearth of evidence supporting its volun-tariness. As an appellate court without the benefit of viewing witnesses and determining credibility, without the benefit of any findings of fact or a well-developed record, and without the benefit of knowing what, if any, legal standard the trial court employed, we feel the best and most prudent solution in this case is to reverse and remand this case for a new trial and a new and reliable suppression hearing in which a specific determination regarding volun-tariness may be made, and a record adequately developed. In this suppression hearing, the trial court should make findings on the admissibility of the statement based on the totality of the circumstances, specifically evaluating Jennings’s mental capacity, age, experience, education, background, and intelligence, and whether he had the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.

¶ 15. Thus, we reverse the judgment of the Court of Appeals, as well as the judgment of the Lowndes County Circuit Court and remand this case to the trial court for proceedings consistent with this opinion.

¶ 16. REVERSED AND REMANDED.

DICKINSON, P.J., KITCHENS AND CHANDLER, JJ„ CONCUR. RANDOLPH, P.J., AND LAMAR, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., PIERCE AND COLEMAN, JJ„ CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The Facts and Procedural History recited will be limited to those facts germane to the sole issue we will address, namely the issue of the voluntariness of Jennings’s waiver of rights and confession.

      . Initials of the victim are used to protect her identity.

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

      . This response is understandable given that the interrogation occurred on June 9, 2010, most likely during the summer holidays.

      . Detective Perrigin badly mispronounced the word "coercion” (as "co-assertion”), to the point it is virtually unrecognizable. This Court was able to determine that he meant "coercion," as the form from which he read is in the record. His mispronunciation occurred while asking Jennings to affirm that he was not under coercion for purposes of the waiver of rights, and he did not correct his mispronunciation. Later in the interview, Jennings stated several times that he could not read and was in special education, thus he would not have been able to read the form to understand to what Detective Perrigin was referring when he used the nonexistent word "co-assertion.”

      . Both trial and appellate counsel argue that Jennings’s question asking what an attorney is was a request for an attorney. We need not address this argument, as it is without merit. Clearly in this circumstance, asking what an attorney is evinces a lack of understanding of his rights, but was in no way a request for an attorney. However, counsel also argued that the Miranda waiver was involuntary, and not knowing and intelligent, due to Jennings’s age, education level, and mental abilities, thus these issues were properly presented to the trial court.

      . At some points in the audio recording, it is difficult to understand exactly what was said. The record does not contain a transcript of the audio recording.

      . During the statement, Jennings stated, and the police officers seem to concede, that he had never been arrested or had an encounter with the legal system before.

      . Defense counsel stated that he did not file a written motion to suppress because he believed his client would testify and it would come in "on the back side” anyway. This reasoning is perplexing. First, if a statement was found to be involuntary, it would not come in "on the back side” to impeach the defendant. Second, even if it was found to be voluntary and could be used to impeach Jennings, if it was found to be in violation of the technicalities of Miranda, it could not be used in the State's case-in-chief as evidence of the crime. See Powell v. State, 483 So.2d 363, 368-69 (Miss.1986). Thus, failing to file a written motion to suppress merely based upon a belief that a defendant would be testifying makes little sense.

      . The Mississippi Constitution similarly provides that, in a criminal prosecution, no person shall be compelled to give evidence against himself. Miss. Const, art. 3, § 26 (1890).

      . It concerns us that Detective Perrigin testified in the suppression hearing that "we did talk about reading, you know, and he was okay with reading” when the audio recording makes clear that when Detective Perrigin and Jennings talked about reading, Jennings consistently stated that he could not read. However, that portion of the audio recording does not appear to have been played during the suppression hearing.

      . For example, Detective Perrigin read the following line to Jennings from his third written confession: "She told me to stop when it started hurting her but I didn't.” Jennings immediately corrected him "I did” and a discussion ensued in which he explained that he did stop. Detective Perrigin did not change the line in the written confession, and nonetheless had Jennings sign that confession, knowing Jennings was functionally illiterate.