Court finds subject did not unambiguously request counsel in this case


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. 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 her 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 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.

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 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.

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 the events, Barnes was read her Miranda 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.

Barnes was convicted of embezzlement and sentenced to ten years. On appeal, she argued her statement should have been suppressed. MSC affirmed.


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.

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

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 “to 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.

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.

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 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, “meaning if I needed to get a lawyer, that I would get one, whatever I have to do.”

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 U.S. Supreme Court case U.S. v Davis, 512 U.S. 452 (1994), Barnes failed to make an unambiguous, unequivocal request for an attorney, and Lewis had no obligation to stop questioning her.