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SEPTEMBER 07, 1983




Howard Leon Morris, Defendant below and Appellant here, was convicted in the Circuit Court of Leflore County, Mississippi, of the crime of possession of more than one kilogram of marijuana and was sentenced to eight years imprisonment and fined $10,000. Understandably aggrieved, he appeals.

On the evening of his arrest, Morris was interviewed at length by law enforcement authorities. The interview was tape recorded. He substantially incriminated himself on this and other potential charges. Prior to trial defense counsel requested production of the statement pursuant to Rule 4.06 (2) of the Uniform Criminal Rules of Circuit Court Practice. The State failed to produce the statement and subsequently, over objection of Defendant, a key state witness was allowed to testify in regard thereto. Because the State failed to comply with its obligation to produce the statement as required by Rule 4.06, we reverse and remand for a new trial.


 On the evening of August 27, 1981, Morris and one Johnny Bowen were riding in Bowen's pickup on the Old Humphreys Highway in Leflore County, Mississippi. Bowen was driving. Morris was a passenger on the right side of the vehicle.

 At approximately 6:00 p.m., Leflore County Sheriff Ricky Banks observed the vehicle weaving across the white line. He ordered the vehicle to pull over and stop. Sheriff Banks approached the pickup on the driver's side. Bowen opened the door and got out. Through the open door, Sheriff Banks could see Morris on the passenger side with a grocery sack between his legs.

 Sheriff Banks then walked around to the right side of the vehicle, and as he did so, Morris got out. Sheriff Banks

 testified that, as Morris got out, a plastic bag containing a green leafy substance fell out of the truck. According to Defendant Morris, the bag never fell out but remained on the seat. In any event, Banks seized the bag, recognized it as marijuana, and put it in his pocket. Banks then looked into the larger paper bag, which was open, and found that it contained a number of smaller plastic bags also filled with marijuana.

 Banks placed Bowen and Morris under arrest. He then seized the grocery bag and, with the two men in custody, drove back to his office in Greenwood. There, the brown sack was weighed and found to contain approximately four pounds of marijuana.

 Once in the custody of the sheriff in the Leflore County Jail, Morris was given the standard Miranda *fn1 warnings. He was questioned intermittently thereafter. Agents from the State Narcotics Bureau arrived and, together with Banks, they persistently besought Morris to tell them not only about the marijuana in question but also about other trafficking in illegal controlled substances.

 At approximately 10:30 p.m. on the same evening, some four hours after the arrest, the interview which has given rise to the troublesome issue in this case began. Present were Agent Humphreys of the State Narcotics Bureau, Sheriff Banks, and Morris. The typed verbatim transcript of the tape recorded interview is some 29 pages in length. Questions put to Morris relating to the matter for which he was then under arrest appear on page 18 only. The rest of the interview consists of a far ranging interrogation about various illegal drug transactions the authorities thought Morris may have been involved in or may have knowledge of. Suffice it to say that the statement is substantially incriminating.

 The transcribed interview was used by the State at trial in two ways. First, as a part of the State's case in chief Sheriff Banks testified. On cross-examination he sandbagged unknowing defense counsel. At the time counsel had no knowledge of the existence of a transcribed interview, much less its contents. Sheriff Banks, however, was very much aware of the statement. In a wholly unresponsive answer to an admittedly inept question, Banks blurted out in the presence of the jury that Morris had brought some 200 pounds of marijuana into the Greenwood area. This information appears on page 18 of the transcribed interview.

 When the defense put on its case, the transcribed interview had still not been disclosed. Morris took the stand in his own defense. The State once again" sandbagged ". Then in rebuttal the State recalled Sheriff Banks who produced the statement and proceeded to impeach Morris with it. This was the first knowledge the defense had of the existence of the statement. The defense

 made timely and proper objection which was overruled. Hence this appeal.



 The dispositive issue on this appeal arises out of the non-disclosure of the typed verbatim transcript of the State's interrogation of Morris on the night of his arrest.

 The case was called for trial on December 14, 1981. Approximately a week earlier Morris' attorney had an informal pretrial conference with the assistant district attorney in charge of the case. At this conference the State voluntarily produced" some lab reports "and" an arrest report ". Defense counsel states that a request was made for production of any statements that Morris had given law enforcement officers. The State's attorney responded at trial that she did not specifically recall the request but that if such a request was made," I did not have any in that file for this particular case. "Defense counsel at trial asked," And I believe that in looking through your file you indicated that there was no statement that you had? ". The State's attorney replied," None that I knew of pertaining to this case; no, sir. "

 When the existence of the statement became known during the rebuttal testimony of Sheriff Banks, the State reiterated its position: It had the typed verbatim transcript of the August 27 interview but did not consider it to be related to this case.

 To be sure, only one of the 29 typed pages appears to relate to the case at bar. In reviewing Rule 4.06, however, we find no language which would provide that a defendant can discover only those statements he gave which in the State's opinion are related to the particular case. We hold without the slightest doubt that the statement in question was discoverable under Rule 4.06.

 That portion of Rule 4.06 which mandates the production of statements made by an accused, in whatever form preserved, has been authoritatively construed by this Court in Jackson v. State, 426 So. 2d 405 (Miss. 1983). The facts in Jackson are similar to those presented here.

 In Jackson, the defendant was convicted of murdering her former boyfriend. Her defense was self-defense. The trial court had allowed a deputy sheriff to testify to facts contained in an incriminating statement made by the defendant (a memorandum of which had been preserved). The statement had been given shortly after arrest. The only problem was that the written memorandum had not

 been furnished to the defense counsel when he had requested it. Defense counsel did not know of its existence until the damage had been done. He noticed that, while testifying in rebuttal, the deputy was refreshing his memory from papers he held in his hand. These papers turned out to include a memorandum reflecting details of the confession Jackson had made to the deputy. After finding out what the deputy was referring to, defense counsel moved that his rebuttal testimony be stricken from the record, or, in the alternative, that a mistrial be granted. His requests were denied. On Jackson's appeal this Court held that the deputy's memorandum was, in effect, a discoverable statement within the meaning and contemplation of Rule 4.06. The Jackson Court characterized the failure to produce this statement for opposing counsel as follows:

 " In our opinion, the record on the first assignment of error indicates at least some form of what experienced trial attorneys call "sandbagging" . Obviously, the most important part of the entire trial was whether or not Appellant secured the pistol out of the van and it remained in plain view or whether she was carrying it upon her person. There could be no more damaging testimony than that by Deputy Fairburn regarding this point, as the last evidence presented to the jury.

 We find it error for the Court to deny Appellant's motion to either instruct the jury to disregard the rebuttal testimony of Deputy Fairburn or to grant a mistrial. "426 So. 2d at 407.

 This Court reversed and Jackson's case was remanded for a new trial.

 On the authority of Jackson, we hold that the State's failure to produce the statement, coupled with the State's use of the information contained in the statement both as a part of its case in chief and in rebuttal so infected ...

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