                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2008-KA-00684-SCT

CAROLYN MARIE BARNES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         04/11/2008
TRIAL JUDGE:                              HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF INDIGENT APPEALS
                                          BY: ERIN ELIZABETH PRIDGEN
                                          TONI DEMETRESSE TERRETT
                                          LESLIE S. LEE
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                        RICHARD EARL SMITH, JR.
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 03/04/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE GRAVES, P.J., LAMAR AND KITCHENS, JJ.

      GRAVES, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Carolyn Barnes was convicted of one count of embezzlement in the Circuit Court of

Warren County and sentenced to ten years in the custody of the Mississippi Department of

Corrections. Barnes’ post-trial motion was denied and she filed this appeal. We find that

the issues raised by Barnes are without merit and that her conviction should be affirmed.

                                         FACTS
¶2.    Carolyn Barnes was a home caregiver for Lottie Montague’s husband. Upon his

death, the family continued to employ Barnes to assist 86-year-old Lottie Montague with

daily activities. Barnes had a key to Montague’s home, kept Montague’s vehicle for personal

use and to take Montague on errands, and was paid an hourly wage. On May 8, 2006, Barnes

drove Montague to a senior citizens center in Vicksburg. After leaving the center, Barnes

drove Montague to BancorpSouth, where Montague cashed a check for $3,000 with the

intention of depositing the money into the credit union account of Montague’s daughter,

Joyce. The pair picked up lunch and proceeded to Mutual Credit Union, where Barnes

offered to take the money inside and deposit it in Joyce’s account because she said she knew

the teller. Barnes took the money and entered the credit union. When Barnes exited the

credit union, Montague’s son, Charles, came walking up. Charles, who worked across the

street from the credit union, asked what Montague and Barnes were doing there and Barnes

indicated she would tell him later.

¶3.    The pair returned to Montague’s house and ate lunch. Montague then told Barnes she

was going to take a nap and that Barnes could leave for the day. Barnes said she would lock

the door and then left. Shortly thereafter, Montague was awakened by someone straddling

her and holding a pillow over face and rubbing it back and forth. Montague testified that she

initially struggled, but then she thought she was going to die and just relaxed. The attacker

removed the gold and diamond ring from Montague’s fingers, took her leather wallet

containing $300 and her credit cards, and her keys. Montague was unable to identify her

attacker, but was able to tell that the person was tall, thin and wearing a white shirt with a

blue stripe. Montague called 911. Law enforcement and emergency medical personnel


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arrived on the scene. Montague provided details of the attack and was later transported to

the emergency room. Barnes returned to Montague’s house and spoke with investigators

from the Warren County Sheriff’s office, including Todd Dykes and Randy Lewis.

Investigators found no signs of forced entry. Barnes never returned to work for Montague.

However, Barnes kept in contact with investigators, wanting to know how the case was

progressing.

¶4.    On May 9, 2006, the day following the attack, Barnes called Dykes. Barnes told

Dykes that, although the initial report made by Montague was that $300 was taken, an

additional $3,000 actually had been taken. However, Barnes failed on at least two separate

occasions to mention anything about going to Mutual Credit Union to deposit the money.

Dykes relayed the information provided by Barnes to Lewis, who was working the case.

After Barnes told investigators that an additional $3,000 had been taken, investigators talked

with Montague, and she told them that Barnes was supposed to have deposited the money

into Joyce’s account. However, the money was never deposited. Further, investigators

obtained surveillance photographs, taken from surveillance video 1 from Mutual Credit Union,

that showed Barnes, wearing a white shirt with a blue stripe, enter the bank, go toward the

deposit counter and do nothing. Barnes was wearing a different shirt when she returned to

Montague’s home following the attack.

¶5.    Investigators asked Barnes to go to the sheriff’s office on May 23, 2006, for an

interview. During the course of the interview and based on discrepancies in her version of




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           A bank employee also testified regarding the video.

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the events, Barnes was read her Miranda 2 rights and was later arrested. On May 24, 2006,

authorities executed a search warrant on Barnes’ home, but did not find any of the items

taken from Montague or the white shirt with a blue stripe that Barnes was wearing on the

surveillance video.

¶6.    Barnes was indicted on charges of embezzlement and robbery. Barnes was convicted

only of embezzlement and sentenced to serve ten years in the custody of the Mississippi

Department of Corrections. Subsequently, Barnes filed this appeal.

                                           ANALYSIS

I. Whether the trial court misapplied the law in admitting Barnes’ statements made
during custodial interrogation, thus depriving Barnes of her constitutional Right to
Counsel.

¶7.    Barnes asserts that the trial court should have suppressed her statements because they

were taken in violation of her constitutional Right to Counsel. Barnes asserts that she

attempted to invoke her Fifth Amendment Right to Counsel during her interview with

authorities on May 23, 2006. Barnes further asserts that her statement to police was taken

in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Section 26

of Article 3 of the Mississippi Constitution.

¶8.    This Court will reverse a trial court’s denial of a motion to suppress only if the ruling

is manifest error or contrary to the overwhelming weight of the evidence. Ruffin v. State,

992 So. 2d 1165, 1169 (Miss. 2008) (citations omitted). Under Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), custodial interrogation must be preceded




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

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by advising the defendant of his right to remain silent and his right to an attorney. Id. at 479.

Upon invocation of the right to remain silent, the interrogation must cease. Id. If the

defendant invokes his right to counsel, the interrogation must cease until an attorney is

present. Id. “If the interrogation continues without the presence of an attorney and a

statement is taken, a heavy burden rests on the government to demonstrate that the defendant

knowingly and intelligently waived his privilege against self-incrimination and his right to

retained or appointed counsel.” Id. at 475. Once a defendant asks for counsel, he cannot be

interrogated further until counsel has been made available, “unless the accused himself

initiates further communication, exchanges, or conversations with the police.” Edwards v.

Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).

¶9.    However, the “applicability of the ‘“rigid” prophylactic rule’ of Edwards requires

courts to first ‘determine whether the accused actually invoked his right to counsel.’” Davis

v. U.S., 512 U.S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (citations omitted).

Determining whether a defendant actually invoked his right to counsel is an objective

inquiry. Id. at 459. A defendant “must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would understand

the statement to be a request for an attorney. If the statement fails to meet the requisite level

of clarity, Edwards does not require that the officers stop questioning the suspect. Davis,

512 U.S. at 459. Further, the U.S. Supreme Court in Davis reiterated that there is no

requirement that police clarify whether or not a defendant actually wants an attorney when

the defendant makes an ambiguous or equivocal statement. Davis, 512 U.S. at 461. The

Court said that, although clarifying questions are good police practice, “we decline to adopt

                                               5
a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an

unambiguous or unequivocal request for counsel, the officers have no obligation to stop

questioning him.” Id. at 461-62.

              To recapitulate: We held in Miranda that a suspect is entitled to the
       assistance of counsel during custodial interrogation even though the
       Constitution does not provide for such assistance. We held in Edwards that
       if the suspect invokes the right to counsel at any time, the police must
       immediately cease questioning him until an attorney is present. But we are
       unwilling to create a third layer of prophylaxis to prevent police questioning
       when the suspect might want a lawyer. Unless the suspect actually requests an
       attorney, questioning may continue.

Davis, 512 U.S. at 462. See also Delashmit v. State, 991 So. 2d 1215, 1221 (Miss. 2008);

and Chamberlin v. State, 989 So. 2d 320, 333 (Miss. 2008).

¶10.   During the hearing on the motion to suppress, Lewis testified that Barnes was not a

suspect when he called her and asked her to come to his office for a noncustodial interview.

Barnes’ interview was videotaped and later transcribed. However, Lewis testified that during

the course of the interview, Barnes made some contradictory statements, which are discussed

further herein, that made her a person of interest. At that point, Lewis said Barnes was given

her Miranda rights and a waiver. Lewis further testified that Barnes still was not a suspect

at that point, but that he was aware that she had made contradictory statements. Lewis also

testified that Barnes never asserted her right to have an attorney present, but that she was

offered an attorney.

¶11.   In the motion to suppress her statement, Barnes argued that she had asserted her right

to counsel multiple times. The trial court denied Barnes’ motion, finding that Barnes

understood her right to get an attorney, that Barnes never asked for an attorney, and that her



                                              6
statements were free and voluntary. The trial court also noted that Barnes never made any

inculpatory statements.

¶12.   Barnes argues on appeal that the first assertion after she was given the Miranda

warning was when she made the statement, “So, I don’t need legal, okay . . . .” However,

this is not an assertion of her right to counsel, but rather an attempt to clarify whether she

must have an attorney present. Barnes testified during the hearing on the motion to suppress

that she made the statement “[t]o see did I need to have a lawyer there, did I need some legal

representation . . . .” Further, after Barnes made this statement, Lewis explained to her that

he had to advise her of her rights and make sure she understood before he asked her any more

questions. Barnes indicated that she understood.

¶13.   Barnes next claims that she again asserted her right to counsel when she said, “But

I don’t have an attorney here.” However, again, this statement read in the context in which

it was made does not indicate an explicit request for an attorney. Barnes continued talking.

Lewis interrupted her on two separate occasions and advised her to “hold on just a second”

until he had the information written on the waiver so she could read over it. Lewis then

reviewed the waiver with Barnes. Barnes indicated that she understood. Further, Barnes

again testified during the hearing on the motion to suppress that this statement was merely

a question as to whether she needed to have an attorney present.

¶14.   Barnes claims that the “clearest example” that she had asserted her right to counsel

was when she said, “Now if I do need to get a lawyer . . . I will get one.” However, Lewis

asked whether that was what she wanted to do and she replied, “It don’t matter to me.”

Lewis again asked whether she wanted to, and she replied, “Whatever I’ve got to do, but I’m


                                              7
not fixing to get railroad [sic] up in this mess because Joyce is the one that gets . . . getting

all . . . getting her and her husband since she bought him from Iraq, she’s the one that’s

talking about she’s been broke since she got ‘Farkad’ [Joyce’s husband] over here.” Barnes

testified at the hearing on the motion to suppress that this statement meant exactly what it

says, “[m]eaning if I needed to get a lawyer, that I would get one, whatever I have to do.”

¶15.   We find that the record supports a finding that Barnes received the Miranda warning,

that she knowingly and intelligently waived the rights, and that she freely and voluntarily

made the statements. Pursuant to Davis, Barnes failed to make an unambiguous, unequivocal

request for an attorney, and Lewis had no obligation to stop questioning her. Id. at 461-62.

See also Chamberlin, 989 So. 2d at 333. Therefore, this issue is without merit.

II. The trial court erred in denying Barnes’ motion for a new trial as the verdict was
against the overwhelming weight of the evidence.

¶16.   Barnes was indicted for embezzling the $3,000 under Mississippi Code Section 99-23-

19, which provides, in relevant part:

       If any director, agent, clerk, servant, or officer of any incorporated company,
       or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of
       any private person, shall embezzle or fraudulently secrete, conceal, or convert
       to his own use, or make way with, or secrete with intent to embezzle or convert
       to his own use, any goods, rights in action, money, or other valuable security,
       effects, or property of any kind or description which shall have come or been
       intrusted to his care or possession by virtue of his office, place, or
       employment, either in mass or otherwise, with a value of Five Hundred Dollars
       ($500.00) or more, he shall be guilty of felony embezzlement, and, upon
       conviction thereof, shall be imprisoned in the Penitentiary not more than ten
       (10) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both.

Miss. Code Ann. § 97-23-19 (Rev. 2003).




                                               8
¶17.   This Court reviews a trial court’s denial of a motion for new trial under an abuse-of-

discretion standard. Dilworth v. State, 909 So. 2d 731, 737 (Miss. 2005). “A greater

quantum of evidence favoring the [S]tate is necessary for the [S]tate to withstand a motion

for a new trial, as distinguished from a motion for J.N.O.V.” Id. (quoting Pharr v. State, 465

So. 2d 294, 302 (Miss. 1984)). “Accordingly, we defer to the discretion of the trial judge,

and ‘[w]e will not order a new trial unless convinced that the verdict is so contrary to the

overwhelming weight of the evidence that, to allow it to stand, would be to sanction an

unconscionable injustice.’” McClendon v. State, 945 So. 2d 372, 385 (Miss. 2007) (quoting

Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983)). This Court further has said:

       However, the evidence should be weighed in the light most favorable to the
       verdict. A reversal on the grounds that the verdict was against the
       overwhelming weight of the evidence, unlike a reversal based on insufficient
       evidence, does not mean that acquittal was the only proper verdict. Rather, as
       the “thirteenth juror,” the court simply disagrees with the jury’s resolution of
       the conflicting testimony. This difference of opinion does not signify acquittal
       any more than a disagreement among the jurors themselves. Instead, the
       proper remedy is to grant a new trial.

Dilworth, 909 So. 2d at 737.

¶18.   Barnes asserts that the verdict was not supported by the overwhelming weight of the

evidence because too much weight was placed on Montague’s testimony. Barnes also asserts

that Montague’s testimony was “riddled with inconsistencies and contradictions.” Barnes’

claim is an exaggeration not supported by the record in this matter.

¶19.   Barnes asserts that statements about whether she returned to the home after the attack

and whether Montague had an additional set of house keys were contradictory. However,

it is rational to assume that since Montague had just been attacked, was treated at the scene



                                              9
and then taken to the hospital, she may not have realized whether Barnes returned to the

scene. Further, various parts of the record are contradictory as to which keys were even

taken. More importantly though, neither of these statements has anything to do with the

embezzlement.

¶20.   Barnes further asserts that “Montague’s most damaging contradiction occurred when

she acknowledged Carolyn’s conversation with Charles, her son, outside the Mutual Credit

Union.” Barnes asserts that because Montague admitted that Charles asked what the pair was

doing at the credit union and Barnes responded she would tell him later, that it somehow

proves that Montague was hiding something from Charles. However, this argument is

nonsensical. There is no contradiction in the record regarding what was said by and to

Charles at the credit union. The only contradictions regarding the credit union are Barnes’

various versions of what occurred there. Barnes failed to mention anything about the credit

union to investigators. When Lewis specifically asked Barnes during the interview whether

the pair stopped at the credit union, Barnes indicated that the pair stopped at the bank so

Montague could withdraw money. Further, Barnes said the pair then proceeded to the credit

union because Montague wanted to withdraw more money, but that they saw Charles and

Montague changed her mind.3            Barnes then indicated that, upon changing her mind,

Montague told Barnes to go in and get some change.              However, this scenario was

contradicted by both Barnes herself and other evidence in the record. Barnes testified at trial

that, after they left the bank and as they were driving, Montague indicated she needed some

change, so Barnes stopped at the credit union. The surveillance video indicated that Barnes

       3
           At this point, Lewis advised Barnes of her rights.

                                                  10
did nothing, and did not even get change, upon entering the credit union. Further, the video,

Montague, and Barnes’ statement established that Charles was not there before Barnes went

into the credit union, but came up as Barnes exited. The evidence presented at trial

established that Barnes was employed by Montague. The evidence also established that

Montague entrusted Barnes with $3,000 to deposit into Joyce’s account. Further, Barnes

failed to deposit the money, but instead secreted it for her own use.

¶21.   Barnes has failed to establish that the trial court abused its discretion in denying the

motion for new trial. Further, Barnes has failed to establish that the verdict is contrary to the

overwhelming weight of the evidence. Therefore, this issue is without merit.

                                       CONCLUSION

¶22.    For the reasons stated herein, we affirm the judgment of conviction of embezzlement

in the Circuit Court of Warren County and sentence of ten years in the custody of the

Mississippi Department of Corrections.

¶23. CONVICTION OF EMBEZZLEMENT AND SENTENCE OF TEN (10) YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

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




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