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FEBRUARY 22, 1984




This is an appeal from the Circuit Court of Tishomingo County wherein the appellant, Larry Harris, was found guilty of manslaughter. Harris was sentenced to serve sixteen years in the custody of the Mississippi Department of Corrections. From that conviction and sentence he now brings this appeal. We reverse.

It is undisputed that on the evening of Sunday, February 15, 1981, Larry Harris and his nephew, Gary Berryman, went to the house of Clyde Harris, Larry's uncle. Larry went in the house and Gary waited outside in the truck. Moments later, a shot was fired and Clyde Harris was fatally wounded. Larry Harris then ran to a nearby field where he stayed and drank whiskey for approximately an hour and one-half to two hours at which time he returned to the Clyde Harris residence and surrendered himself.

 At trial, Larry testified that the shooting was an accident. He stated that the .25 caliber pistol with which his uncle was killed was intended as a replacement gun for his uncle. Larry wanted to give Clyde the pistol because he had lost one of his shotguns sometime previously. He testified that as he pulled the gun out of his back pocket and handed it to his uncle the gun accidentally discharged.

 This version of the events was contradicted only by a statement Larry Harris gave to law enforcement officers shortly after his surrender. In that statement, Harris states that he went to see his uncle about a dog. In his statement Harris says that when his uncle asked him "What dog?" Larry reached in his pocket to pull out the gun to give Clyde and that it must have scared Clyde because "The first thing I know he was trying to hit me and the gun, like I say, it shot him." Under the state's version of the events Larry Harris killed his uncle in a dispute over the dog.

 The two central questions to this appeal revolve around certain motions made prior to trial. The first of these was a motion to suppress Harris' statement. Harris claims that at the time he gave the statement he was so intoxicated that he could not knowingly and intelligently waive his right to counsel. Two hearings were held on the motion to suppress, each of which resulted in a different conclusion.

 At the first suppression hearing Officer David Huggins, an investigator with the Mississippi Highway Patrol, testified that he conducted the interrogation of Harris the evening of the shooting. Officer Huggins said that he read Harris his rights and that Harris appeared to understand them. In Huggins' terms, "He was in good shape." Huggins stated that Harris had told him that he had had a drink but he did not appear to be under the influence of alcohol. Huggins indicated that Harris' eyes were clear and that his speech was distinct with nothing to indicate any physical or mental impairment. Huggins tape-recorded the interrogation and the tape was played at the suppression hearing.

 Larry Harris testified on his own behalf at this hearing. He stated that he had been drinking whiskey for a day and a half before the shooting. He also stated that he had been taking pills which were prescribed for his wife's cold during the same period of time. Harris denied having any memory of the events which transpired before he entered his uncle's house. Neither could he remember signing the waiver of rights, hearing his rights read to him, nor signing the statement.

 Officer Terry Sherron testified that the interrogation of Harris began thirty to forty-five minutes after the arrest. Officer Sherron stated that in his opinion Harris was under the influence of alcohol or medication at the time he gave his statement. Sherron based his opinion upon his observation of Harris' eyes were red and his speech was slow. In Sherron's opinion Harris did not understand what he (Harris) said in the interrogation.

 Sheriff Amos Estes also testified at this hearing. The sheriff initially stated that he believed that Harris understood what was happening during the interview; however, he later stated that he could not say for certain that Harris appreciated what was happening. Sheriff Bates testified that Harris had red eyes and a mumble in his talk. He stated that Harris was not deliberately talking slow and that in his opinion Harris acted like he was under the influence of alcohol or drugs.

 Following this testimony the court ruled that Harris' confession would be suppressed. The court stated in its opinion that its decision was based upon the equivocating testimony of Officers Sherron and Sheriff Bates, one of whom testified that Harris did not understand what was happening at the interrogation, and the other who testified that he was not certain that Harris understood. An order was entered suppressing the confession.

 Shortly thereafter, the state filed a motion for rehearing. In this motion the grounds for the rehearing were: (1) Deputy Sherron's testimony was a surprise; (2) Officer Huggins was called away following his testimony and unavailable for recall at the time of the initial hearing; (3) the existence of additional witnesses who observed Harris sometime before he gave the statement. On January 7, 1982, the court entered an order granting the motion for rehearing and setting a new hearing date.

 At the second hearing, essentially the same testimony was elicited with the addition of three new witnesses for

 the state. Deputy Mike Kemp testified that he saw Harris in a patrol car shortly after his apprehension. He stated that he heard Harris tell other officers where the gun involved in the shooting was located. Kemp was of the opinion that Harris' speech was not slurred and that he was not under the ...

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