Rebecca Lynn Harris (“Defendant”) appeals from the judgment upon her conviction by a jury of one count of second degree assault, Section 565.060, RSMo 2000 1 Defendant argues the trial court erred in (1) denying her motion to suppress statements, (2) overruling her counsel’s motion to exclude the late endorsement of witnesses, (3) allowing the video deposition of the State’s expert witness to be played for the jury without redacting the witness’s legal conclusion, and (4) allowing the double hearsay testimony of Detective James Presson (“Detective Pres-son”). We reverse and remand.
In the light of the record viewed in its entirety, the following facts were adduced at trial. Caprina (“Mother”) and Aaron (“Father”) Wakefield hired Defendant as an in-home nanny for their two children, A.W., who was about two years old at the time of the incident, and the victim, who was about four months old at the time of the incident. Defendant began working for Mother and Father on October 1, 2007.
On October 26, 2007, Defendant arrived for work at about 1:30 p.m. Father talked to Defendant about the children’s activities for that day, which included nothing out of the ordinary.
At 4:56 p.m., Defendant called 911 because the victim was not breathing. After paramedics arrived, the victim was transported to the hospital. The victim sustained serious injuries.
Later in the evening of October 26, 2007, Detectives Presson and Jay Hultz contacted Defendant at her boyfriend’s house to try to find out what had happened that day. Defendant gave the detectives the sequence of events that day, and she stated that when she realized something was wrong with the victim, she blew in his face and gently shook him trying to get him to respond. Defendant also agreed to go to the police station to give a written statement.
Defendant was later arrested on November 29, 2007 and was taken to the police station. Detective Presson placed her in an interview room and explained her constitutional rights to her using a form prepared by the prosecutor’s office. Defendant then talked at length to the detectives.
Subsequently, Defendant filed a motion to suppress arguing that she was questioned without being adequately advised of her rights. This motion was denied after an evidentiary hearing. The video of Defendant’s interrogation was played for the jury and her written statement was admitted into evidence at trial.
Defendant was convicted of one count of second-degree assault and was sentenced to seven years of imprisonment and received a fine of $3,000.00. This appeal follows. 2
In her first point, Defendant argues the trial court erred in denying her motion to suppress statements and in admitting the statements at trial because the admission of such statements was in violation of Defendant’s right to be free from self-incrimination and her right to counsel. 3 Defendant maintains the statements were made while she was being interrogated by Detective Presson and after she *485 had requested counsel several times throughout the interrogation. We agree.
We will affirm the trial court’s ruling on a motion to suppress unless the ruling was clearly erroneous.
State v. Williams,
To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, the police must terminate their interrogation of an accused in custody if the accused requests the assistance of counsel.
State v. Harrison,
To invoke a right to counsel pursuant to the Fifth Amendment, one must make an unambiguous, unequivocal and specific request for counsel.
State v. Kerr,
At the beginning of her interview, Detective Presson explained to Defendant her rights using a form and asked her to initial *486 next to them if she understood them. When Detective Presson was explaining that Defendant could stop talking to him at any time, the following exchange took place:
[Detective Presson]: You have a right to talk to a lawyer for advice before we ask you any questions and to have the lawyer present with you during questioning. Do you understand that? If you cannot afford to hire one, a lawyer will be appointed for you before your questioning if you so desire. Do you understand that?
In response to these questions, Defendant initialed the form indicating she understood these rights. The questioning then continued as follows:
[Detective Presson]: If you decide to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time, for any reason. You also have the right to stop answering questions at any time until you talk to a lawyer, you understand that?
[Defendant]: No.
[Detective Presson]: What it’s saying is if you decide to answer questions now, without a lawyer present, you still have the right to stop answering questions at any time.
[Defendant]: Okay.
[Detective Presson]: Okay. And that’s for any reason. So basically saying you can stop talking to me at any time. Okay? AVhat you’re, what you’re, when you’re initialing off, you’re saying you understand that, you’re going to be willing to talk to me, okay? But you know that you can stop at any time if you want to.
[Defendant]: I’d rather appoint a lawyer.
[Detective Presson]: huh?
[Defendant]: I’d rather appoint a lawyer.
[Detective Presson]: Do you have a lawyer?
[Defendant]: No.
[Detective Presson]: Or are you trying to get one appointed for you? [Defendant]: Yeah.
[Detective Presson]: Okay, now, one getting appointed for you doesn’t happen like right now, okay? I want you to make sure that you understand that. We just don’t, I mean, if you’re going to have to get an attorney or someone appointed, that doesn’t just happen right now. Because you have to apply for an attorney, you can’t—
[Defendant]: I understand.
[Detective Presson]: Can you not afford an attorney? Is that what it is? [Defendant]: No.
[Detective Presson]: Can’t afford one? Do you want me to read it out loud again to you?
[Defendant]: Hmm?
[Detective Presson]: Do you want me to read it out loud again to you? [Defendant]: That’s fine.
[Detective Presson]: Okay. It says, “If you decide to answer questions now without a lawyer present, you still have the right to stop answering questions at any time, for any reason.” Okay? “You also have the right to stop answering questions at any time until you talk to a lawyer.”
[Defendant]: So I can talk to a lawyer at any time, just not right now? Cause you don’t have one.
[Detective Presson]: You can talk to a lawyer at any time. I was just trying to explain to you that to you have, for you to have an attorney appointed to you, they just don’t, we don’t have anybody down the hallway. Okay? That is something that, when you are trying to get an attorney, you have to show them that *487 you don’t have the financial stuff. So, for us to get you a—
[Defendant]: Can you appoint one for me?
[Detective Presson]: I can’t. You have to go down and apply through them, or you have to retain your own attorney. You can talk to an attorney at any time you want to, but I am just telling you. [Defendant]: So I can talk to an attorney any time now?
[Detective Presson]: I’m sorry? [Defendant]: You’re telling me I can talk to an attorney any time now? [Detective Presson]: That’s correct, but I just, I just don’t want you to think we’re going to call somebody down the hallway
[Defendant]: I understand.
[Detective Presson]: Okay. They have to, that’s something you have to go apply for. Let me ask you, now, do you understand that?
[Defendant]: Not really, I don’t understand the question.
[Detective Presson]: Okay. And what it’s saying is, again, if you decide to answer questions now, without a lawyer, you still have the right to stop answering questions at any time. Okay? You also have the right to stop answering questions at any time, until you talk to a lawyer, at anytime until you talk to a lawyer.
[Defendant]: Well, what if I don’t get to talk to a lawyer?
[Detective Presson]: I’m sorry? [Defendant]: Well, what if I don’t get to talk to a lawyer?
[Detective Presson]: What if you don’t get to—
[Defendant]: Mm-hmm to an attorney? [Detective Presson]: Have you had a chance to talk to an attorney yet? [Defendant]: No.
[Detective Presson]: You haven’t talked to one? Okay, I, I guess where I am trying to go, get to this is that you can talk to an attorney at any time, okay? [Defendant]: Okay. Okay.
[Detective Presson]: And that you can stop talking to me at any time until you talk to an attorney.
[Defendant]: Okay, I understand that.
At this point, Defendant initialed the form. Then the conversation continued as follows:
[Detective Presson]: Okay, this is the waiver. I understand what my rights are. I’m willing to answer questions and make a statement knowing I have these rights. I do not want a lawyer at this time. I understand and know what I am doing. No promises have been made to me. No threats have been made against me or my family. No pressure of any kind has been used against me. No promises of reward or immunity have been made. Do you understand that?
[Defendant]: But what if I want to talk to a lawyer? So you are saying I can’t talk to a lawyer because I don’t have one.
[Detective Presson]: No, I am saying you can talk to a lawyer any time you want to. Okay? What I am saying is that, for one, you have to qualify to get an attorney, unless you have one already that you paid or that you know and stuff like that, okay? I’m not denying you an attorney, okay? Umm, when I told you, you know that we had to verify and go over some of the things that you told us, okay? That was the whole point of us talking with you today.
[Defendant]: So the only reason why you are doing this is because of my rights.
[Detective Presson]: That’s correct.
*488 [Defendant]: Okay, so you have to do it no matter what.
[Detective Presson]: Right, and like I said, you can have an attorney anytime you want to, you can stop talking to me anytime you want to, you can exercise any of these rights at any time you want to is what we are trying to get across here, okay?
[Defendant]: Okay.
[Detective Presson]: I’m not telling you you can’t have an attorney.
At this point, Defendant initialed the waiver. Detective Presson then asked her “are you wanting to talk to me now?” Defendant responded that she did want to talk to him. Detective Presson then asked her to sign the form, which she did.
Defendant was then interviewed by the police, and during the three-hour interview she made several incriminating statements. Defendant also executed a written confession. Defendant was charged and convicted of second-degree assault.
Defendant argues she invoked her right to counsel and Detective Presson violated her right by not ceasing the interview at that point.
4
Defendant further contends that at no point did she initiate further questioning. In
State v. Olds,
In this case, Detective Presson told Defendant “a lawyer will be appointed for [her] before [her] questioning if [she] so desire[d].” Then as he was explaining that Defendant decided to answer questions without a lawyer present, she could stop answering question at any time until she talked to a lawyer, Defendant twice stated she would “rather appoint a lawyer.” Detective then asked Defendant, “... are you trying to get [a lawyer] appointed for you?” Defendant responded, “Yeah.” At this point, Detective Presson should have ceased his questioning of Defendant until she talked to a lawyer because she clearly and unequivocally invoked her right to counsel. However, Detective Presson continued to try to explain Defendant’s rights to her. During the subsequent conversation, Defendant asked Detective Presson if he could appoint an attorney for her. Further, Defendant stated “But what if I want *489 to talk to a lawyer? So you are saying I can’t talk to a lawyer because I don’t have one.”
Ultimately, Detective Presson got Defendant to agree to talk to him and to sign a waiver form. Detective Presson went on to interrogate her, and Defendant made incriminating statements. However, although Defendant eventually agreed to talk to Detective Presson and signed the form waiving her rights that does not vitiate the fact that she invoked her right to counsel and that right was violated when Detective Presson continued questioning her.
In
State v. Gibson,
The United States Supreme Court has held that using an accused’s subsequent responses to cast doubt on the adequacy of the initial request for counsel is intolerable.
Smith v. Illinois,
Here, Defendant unequivocally invoked her right to counsel when she stated twice that she would rather appoint a lawyer and when she responded that she was trying to get a lawyer appointed for her. Detective Presson’s subsequent questions and Defendant’s subsequent statements cannot be used to cast doubt on her initial request. 5
Therefore, in light of the record viewed in its entirety, we find the trial court’s ruling was clearly erroneous because Defendant unequivocally and unambiguously *490 invoked her right to counsel. As a result, the police should have immediately ceased questioning until either Defendant initiated further communications or was able to confer with her counsel. Instead the police continued to interrogate Defendant, which violated her rights under the Fifth Amendment, and any statements resulting from this interrogation should have been suppressed. Thus, the trial court erred in denying Defendant’s motion to suppress her statements and in admitting the statements at trial. Point granted.
Although Defendant’s first point is dis-positive, in the event of a re-trial on remand, the issue of allowing Dr. Maria Spivey’s deposition to be played for the jury may recur, and we will address it here to guide the trial court.
See Muehlheausler v. City Of St. Louis,
In her third point, Defendant argues the trial court erred by allowing the video deposition of Dr. Maria Spivey to be played for the jury without redacting Dr. Spivey’s legal conclusion because the statement invaded the province of the jury in that Dr. Spivey’s testimony defined a term contained in a jury instruction. We disagree.
It is well-established that expert testimony is admissible if it is clear that the subject of such testimony is one upon which the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a proper conclusion from the facts in evidence.
State v. Calhoun,
Jury instruction number 7 provided that “a person acts recklessly as to causing serious physical injury if she consciously disregards a substantial and unjustifiable risk that her conduct will result in serious physical injury, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in this situation.”
Dr. Spivey testified as follows:
Q: Have you read any studies that tell you exactly how much force is required to produce the injuries you have listed for [the victim], foot pounds of force? A: The studies we know from-the studies that I have read from perpetrator confessions tell us that a — that a child who sustained these injuries it was with force that was — that a reasonable onlooker would know this is causing injury to a child.
Defendant argues Dr. Spivey invaded the province of the jury and rendered a legal conclusion regarding the culpable mental state of recklessness of Defendant. In particular, Defendant takes issue with Dr. Spivey’s testimony that the amount of force necessary to cause the injury incurred was such that “a reasonable onlooker would know that this is going to cause injury.” Defendant objected because she believed the reasonable person standard espoused by Dr. Spivey invaded the province of the jury. Defendant maintains Dr. Spivey’s testimony of her experience in these types of cases leads to an inference that she knew the mental state and intent of Defendant.
The purpose of expert testimony is to assist the jury in areas which are outside of everyday experience or lay experience.
State v. Hayes,
Defendant relies primarily on
State v. Clements,
Here, Dr. Spivey’s testimony regarding the amount of force required to inflict injuries such as those sustained by the victim was a matter outside the common experience of the jurors. Dr. Spivey merely commented on the ultimate issue of the cause and nature of the victim’s injuries; she did not comment on Defendant’s responsibility for those injuries. Defendant’s reliance on Clements is misplaced.
Therefore, the trial court did not err by allowing the video deposition of Dr. Spivey to be played for the jury without any redactions. Point denied.
We need not address Defendant’s remaining claims of error.
The judgment of the trial court is reversed and remanded.
Notes
. All further statutory references are to RSMo 2000 unless otherwise indicated.
. We hereby grant the State's Motion to strike portions of the second legal file because they were not the original exhibits marked and submitted to the trial court.
.We note that this matter was properly preserved because Defendant filed a motion to suppress her statements. Further, at trial, Defendant objected when the statements were introduced. Lastly, Defendant included this issue in her motion for new trial.
. The State tries to analogize this case to several cases where the defendant’s request for counsel was found to be equivocal. However, all of those cases involved a question from the defendant about getting a lawyer, not a request for counsel.
See State v. Bucklew,
. We note the Court’s statement in
Davis
that when a suspect makes an ambiguous or equivocal statement, it will often be good police practice for the interviewing officers to clarify whether or not he or she actually wants an attorney.
Davis,