BEFORE BROOM, ROY NOBLE LEE and BOWLING
ROY NOBLE LEE, JUSTICE, FOR THE COURT:
Robert Charles Campbell was indicted, tried and convicted in the Circuit Court of Pike County, Honorable Joe N. Pigott, presiding, on a charge of murder and was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns three errors in the trial below:
I. The lower court erred in holding that the failure of the State to preserve fingerprints of the deceased and remove fingerprints from a .25-caliber automatic pistol found at the scene of the crime constituted an illegal suppression of possible exculpatory evidence.
II. The lower court erred in failing to sustain appellant's motion in limine to prohibit the State from arguing that the .25-caliber automatic pistol was" planted "near the deceased.
III. The lower court erred in stating before the jury that it made no difference if the deceased had an atomic bomb in his pocket.
The evidence for the State reflects that around 12:00 a.m. on September 26, 1981, David Allen, the deceased, and Robert Charles Campbell, appellant, were at the Bird Cage Lounge in McComb, Mississippi. An argument ensued between them when Allen stepped on appellants foot. A short while later, appellant approached Allen outside of the lounge, and renewed the conversation concerning the
incident inside the lounge, whereupon Allen told him" to go and play "somewhere else.
Four witnesses testified substantially to the same facts: that appellant left in his truck, returned in approximately fifteen minutes, and walked over close to Allen, who was sitting on a black and white automobile with his arms folded in his lap; that they were within a few feet of Allen when the shooting occurred; that the area was well lighted and they could see what happened; that Allen did not have a gun or weapon in his hand; that appellant threatened Allen, pulled a .22-caliber pistol and shot him four or five times; that Allen fell to the ground and appellant began kicking him and telling him that he was going to kill him. Appellant left the scene after the shooting and went home where he was arrested a short while later for murder. Dr. Lamar Burrow testified that he examined Allen's body after the shooting and that Allen had been shot four times, once in the right hip, and three times in the back. Two of the bullets entered the chest cavity and one struck his heart.
Detective Lieutenant Ken Foil of the McComb Police Department arrived shortly after Officer Boutwell. He also examined the body and looked around it for a weapon and items of evidence and there were none. Detective Foil left the scene for appellant's home and arrested him for murder.
Officer Boutwell went to a telephone and called for an ambulance. After a few minutes, he returned to the body and then found a .25-caliber automatic pistol seven or eight inches from the feet of the deceased. It was a dark, dull color and not shiny.
Appellant testified that Allen threatened to kill him inside the lounge and pointed a shiny pistol at him; that on the outside of the lounge, Allen had a shiny pistol in his hands and threatened to kill him; and that appellant shot Allen in self-defense. A chrome .22-caliber Derringer was found in Allen's shirt pocket by Dr. Lamar Burrow, when he examined the body. I.
Appellant contends that the State failed to preserve fingerprints from Allen and failed to remove fingerprints from the .25-caliber automatic pistol found at the feet of the deceased, and that such failure amounted to an illegal suppression of possible exculpatory evidence in violation of his constitutional rights. Appellant cites numerous
cases, including Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L.Ed.2d 342 (1976).
In addressing this question, we again refer to the facts established by four eyewitnesses at the time of the shooting. The four witnesses positively testified that when appellant shot Allen, the latter had no weapon in his hands, and made no movement toward appellant, who shot him four or five times.
Officer Boutwell was the first officer to the body and scene. He first examined the body and, even though the area was well lighted by three lights, which included two street lights, used his police flashlight to examine the ground all around the body, and positively testified that there was no gun near the body. Detective Rowland testified to the same facts. After he went to arrest Campbell, Officer Boutwell left the scene to call for an ambulance, and, upon returning a few moments later, immediately saw the .25 caliber automatic pistol seven or eight inches from the deceased's feet. Officer Boutwell picked up the pistol by the trigger guard and dropped it in an evidence bag for preservation. The McComb Police Department was not qualified to process the gun for fingerprints and it was never forwarded to a crime laboratory for that purpose. No fingerprints were taken from the hands of the deceased.
The appellant did not request the court to order production of the gun for fingerprint examination, or to require the police department to have the weapon processed for same. Everything that the appellant requested of the court was granted in the way of disclosure and discovery. We agree with the State that there was no duty on its part to search out and discover any and all possible exculpatory evidence, particularly upon the facts of this case.
In Lewis v. United States, 393 A.2d 109 (D.C. App. 1978), the Court said:
The Brady principle does not imply a prosecutor's duty to investigate - and come to know - information which the defendant would like to have but the government does not possess. See, e.g., United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975), cert. denied, 425 U.S. 905, 96 S. Ct. 1498, 47 L.Ed.2d 756 (1976) (" Brady clearly does not impose an affirmative duty upon the government to take action to discover information which it does not possess "); Levin v.
Katzenbach, 124 U.S. App. D.C. 156, 162, 363 F.2d 287, 291 (1966) (" [W]e do not suggest that the government is required to search for evidence favorable to the accused . . . . "). [393 A.2d at 115-116].
See also State v. Emery, 304 A.2d 908 (Me. 1973); Peoples v. Hocker, 423 F.2d 960 (9th Cir. 1970); People v. Baber, 187 N.W.2d 508 (Mich.App. 1971); Johnston v. State, 376 So. 2d 1343 (Miss. ...