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WILFORD GEORGE LOVE a/k/a SONNY LOVE v. STATE OF MISSISSIPPI

DECEMBER 14, 1983

WILFORD GEORGE LOVE a/k/a SONNY LOVE
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, C.J., HAWKINS AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Wilford George Love has been convicted in the Circuit Court of Leflore County, Mississippi, of the sale of less than one ounce of marijuana on September 15, 1981. Upon his conviction, Love has been sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections and to pay a fine of $3,000.

 In cases such as this where the outcome of the case is substantially dependent upon the identification of an alleged substance as contraband, due process requires making the substance available to the defendant for inspection and analysis. Because Love was denied this right, we reverse and remand for a new trial.

 II.

 The dispositive issue arose in the following procedural context.

 On February 12, 1982, the trial court entered a general discovery order *fn1 providing that, upon motion of defendant, the state should disclose without further order of the court, inter alia, ". . . any physical evidence . . . to be offered in evidence" . On March 5, 1982, Love filed the requisite formal motion requesting discovery. That motion, read in conjunction with the February 12 order, meant that the state was required to divulge any physical evidence it planned to use at trial. The alleged marijuana in question, however, was not forthcoming.

 Thereafter, on March 17, 1982, two days before trial, Love filed a series of pre-trial motions, one of which was entitled "Motion for Independent Chemical Analysis of Alleged Contraband" . Another of the motions made and filed the same day was a motion for continuance.

 Hearings on all the pre-trial motions were held on the following day, March 18, 1982. The trial judge first took up and considered the motion for a continuance. That motion was denied. Thereafter, the court considered the motion for an independent chemical analysis. It is important to note that Love was not requesting that this independent chemical analysis be made at the expense of the state. After a brief hearing, the court overruled and denied the motion.

 In the course of its ruling the court made the following remarks of relevance here:

 . . . based on the fact that this motion was filed the day before the trial in an obvious attempt to keep this trial off the docket and continued, I am going to refuse that motion.

 The motion for a continuance, however, had already been overruled. There was nothing about the instant motion that made it contingent upon a continuance being granted. The trial court went on to state:

 [I]t is not this court's policy and it never will be . . . to have every substance of contraband that is collected through police investigation or otherwise, when an attorney is appointed to have an analysis just because that attorney wants an analysis. Now, if you can make affidavit to this court that you have some indication that the substance which was contained and there is something wrong with the independent analysis, I will certainly hear you on that. But, I am not going to establish a practice now, nor will I ever, until some ...


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