BEFORE PATTERSON, BOWLING AND DAN LEE
BOWLING, JUSTICE, FOR THE COURT:
Appellant James L. Hooten was indicted, tried and convicted in the Circuit Court of Jackson County for the crime of murder and sentenced to life imprisonment under the jurisdiction of the Department of Corrections. This case has a long and complicated history. For the purpose of this appeal, after giving careful study of the entire record, briefs and oral arguments, we find a reversal is required on one assignment of error. It is, therefore, not necessary for us to discuss all of the assignments of error, as they probably shall be handled differently on retrial.
One Reuben Wood, who lived in Gautier in Jackson County, Mississippi, was shot and killed on the night of November 3, 1977. His body was found at the doorway to his mobile home. Appellant, a resident of Savannah, Georgia, at that time, was indicted under a charge of murder by the Jackson County Grand Jury on August 25, 1978. The trial was delayed until August 20, 1980, because of efforts on the part of appellant to resist extradition from Georgia to Mississippi. There is no need to discuss any of those proceedings here.
The alleged assignment of error raised in the lower court and in this Court requiring a reversal is that
" The state suppressed discovery material in violation of the court's order which denied appellant a fair trial. "
The record clearly reveals a flagrant violation by the prosecution of the Mississippi Uniform Criminal Rules of Circuit Court Practice of the court in which appellant was being tried, a flagrant violation of the order of the
trial court and the prior opinions of this Court.
Briefly stated, the case presented by the state was that on November 3, 1977, appellant came by commercial airline to Mobile, Alabama, arriving there at 2:21 a.m. He then, according to a witness for National Car Rental Systems, Inc., rented a car that was to be returned the following day. The car rental personnel witness identified appellant as the person renting the car at that time. The car was returned to the rental office at 6:08 a.m. on the morning of November 4. It was the contention of the state that appellant drove to Gautier in the rental car, a distance of 44.6 miles from, Mobile, shot Wood sometime that night, and returned to Mobile and caught a commercial airline back to Georgia.
One of the main witnesses for the state was Charlotte Acheson, the manager of a convenience store in Gautier. Her testimony probably was essential to the state's case. She testified that on the afternoon of November 3, appellant came into the convenience store and requested directions to Narcissus Street, where Wood lived. The witness testified she drew the person, whom she identified as appellant, a map on a piece of paper and fully explained to him how to reach the requested destination. Acheson testified that the encounter with appellant happened sometime on the afternoon of the third of November, but" I don't know what time. "She normally stopped working at 2 a.m., but about half the time she was in the store after two o'clock. She reiterated on cross examination that she did not remember what time appellant came to the store, but again positively and unequivocally identified appellant as the person for whom she drew a map indicating how to reach the street on which Wood lived. She stated again that the incident could have happened any time during the afternoon, as she, the manager, normally would be there at any time after two o'clock, her usual quitting time.
On April 5, 1980, appellant , through his attorneys, filed a motion styled" Motion to Compel Discovery of All Material and Tangible Evidence. "This was a complete and exhaustive motion under Section 4.06 of the Mississippi Uniform Criminal Rules of Circuit Court Practice and under the requirements of Brady v. Maryland, 373 U.S. 83, 10. L.Ed.2d 215, 83 S. Ct. 1194 (1963), and U.S. v. Agurs, 427 U.S. 92, 49 L.Ed.2d 342, 96 S. Ct. 2392 (1976). Although an order is not required under this Mississippi Criminal Rule, the lower court on August 19, 1980, executed a comprehensive order directing that the state discover to appellant essentially all those things requested in appellants motion, including
" The statements of all persons, . . . if said statements are exclamatory, "and" copy of all exculpatory material concerning the defendant. "
On trial that lasted several days, witness Charlotte Acheson was introduced, along with seventeen other state witnesses, and testified essentially as hereinbefore set out. At no time prior to her complete testimony, both direct and cross, was any information or material furnished appellant's attorneys regarding prior written statements by Acheson.
In some manner, not clear in the record, during the testimony of the last state witness, it became known that former witness Acheson had given the state a statement six days after the killing. The prosecuting attorneys made no statement into the record, that can be found by us, as to why this statement was not given previously to appellants attorneys, who became aware of the statement before the final day of testimony. Appellant's attorneys indicate that it was ascertained in some manner during the testimony of Cox, the state's last witness.
After the statement or" cat "was out of the bag, the state placed Acheson on the stand in rebuttal for the obvious and only purpose of explaining inconsistencies in her statements. As pointed out, her statement of November 9, 1977, in some manner had shortly before come into the possession of appellants attorneys, who ...