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JOHN KEITH HENRY v. STATE OF MISSISSIPPI

SEPTEMBER 25, 1985

JOHN KEITH HENRY
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, DAN LEE AND ANDERSON

DAN LEE, JUSTICE, FOR THE COURT:

This appeal is taken from the Circuit Court of Newton County, Mississippi, in which John Keith Henry was tried and convicted of false pretenses. Mr. Henry was sentenced to three years in the custody of the Mississippi Department of Corrections, fined $40,000 and ordered to pay $8,000 in restitution.

Henry appeals and assigns eight errors. As we must reverse on assignment of error No. 3, we find it unnecessary to treat each individual assignment of error. Assignment of error No. 3 is:

 The trial court erred in allowing the State to admit evidence in violation of Uniform Circuit Court Rule 4.06.

 In the fall of 1980, Curtis Gordon was approached by a Meridian businessman about buying a stolen backhoe. Gordon claimed that he and John Keith Henry discussed the matter, that they went together to Meridian to examine the backhoe, and that subsequently he purchased the backhoe on the direction of Henry. (The business relationship between Gordon and Henry was much disputed, as was Henry's relationship to the business, G & H Equipment, Inc., of which Gordon was then president.) The $8,000 purchase price was raised by holding $7,000 out of a G & H deposit to which Henry added $1,000 from his own pocket. The backhoe was delivered first to G & H Equipment and then transferred to Henry's farm, where it remained for three or four months. During that time, the equipment in question was hired out on various jobs. Bills for the use of the backhoe were sent on Curtis Gordon's billhead; customers made their arrangements with Gordon.

 Eventually, in November, 1981, the stolen backhoe

 was sold by G & H Equipment, Inc. to the Town of Union, Mississippi, for $16,000. A treasury warrant for $16,000 made payable to G & H Equipment, Inc. was delivered to John Keith Henry and was endorsed" G & H Equipment, Inc. "and" J. K., Henry. "After the backhoe was discovered to have been stolen, charges of false pretenses were filed against Gordon and Henry. Tried and convicted as codefendants in another proceeding which was reversed by this Court in Gordon v. State, 458 So.2d 739 (Miss. 1984), the two were also codefendants in this case until Gordon entered a guilty plea and severance was granted.

 During trial, the trial judge overruled defense objections to evidence being presented in violation of Rule 4.06. The first situation arose when the state offered as evidence a bill of sale indicating the true ownership of the backhoe.

 Rule 4.06 states, in part, that:

 [T]he prosecution shall disclose to each defendant or to his attorney . . . upon request and without further order . . . any physical evidence . . . to be offered in evidence. . . . If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material which is subject to disclosure, he shall promptly notify the other party of his counsel. . . .

 Henry objected to the admission of the bill of sale on the grounds that the document had been requested on discovery in August, 1982, some eight months prior to trial. Counsel for the state then stated for the record that he had been involved in the case only six weeks; the trial judge indicated that any motion filed in August of 1982, would have been heard by his predecessor. However, the judge went on to state that additional discovery had been requested" Monday a week ago "(March 28, 1983) and that he had" followed the mandates of the rules with regard to the production of those documents which it (sic) required. "The" order on motion for discovery of defendant, John Keith Henry, "dated the 28th day of March, 1983, and signed by the judge states that" Item Number Five to the Motion is denied except for such documents in the actual possession of the state. "(Emphasis added). Item No. 5 in the motion requests production of" [a]ll documents designating ownership of the Case 580C Backhoe Loader Tractor from the alleged true owner thereof. "It is apparent, therefore, that either by operation of Rule

 4.06 or by order of the then presiding trial judge the state should have produced the bill of sale at some time prior to trial, i.e., when the documents came into the state's possession.

 Upon objection to the admission of the bill of sale, the trial judge remarked:" [P]erhaps [the objecting attorney is] right, technically speaking; but I don't - I find that its not that significant. So, I'm going to let it be marked. "This comment requires some examination. In Spots v. State, 427 So.2d 127 (Miss. 1983), citing Pryor v. State, 349 So.2d 1063 (Miss. 1977), this Court listed four factors which, at that time, were to be considered before reversal of a trial court's decision based on failure to produce discovery material. The fourth factor listed was" Whether . . . the introduction of the evidence was harmful and prejudicial to the defendant in the light of all the circumstances. "427 So.2d at 129. This rule has been effectively superseded by subsequent cases. The Court in Morris v. State, 436 So.2d 1381 (Miss. 1983) specifically based its reversal of conviction on the fact that the state failed to produce required discovery material," not because [the defendant] was prejudiced. "Id. at 1385. This rule was reiterated in Ford v. State, 444 So.2d 843 (Miss. 1984) where it was emphasized that" The dictates of Morris must be followed. "Id. at 843. The point was again made clear in Barnes v. State, 471 So.2d 1218 (Miss. 1985)." [W]e do not engage in nice calculations regarding the amount of resulting prejudice. "Id. at 1221, citing Ford, supra, and Morris, supra. Rather, the court said," We inquire whether the rule has been violated. "Barnes, 427 So.2d at 1221, citing Box v. State, 437 So.2d 19, 21 (Miss. 1983)." A rule which is not enforced is no rule. "Id.

 Our holding here should not be misinterpreted as indicating that failure to make pretrial disclosure requires per se reversal. We have recognized that non-discovered evidence may be admitted at trial if the party against whom that evidence is offered is given a reasonable opportunity to make adequate accommodation. See, Foster v. State, No. 55,383, decided 2-26-86 (not yet reported), Jones v. State, No. 55,843, decided 12-5-85 (not yet reported); Davis v. State, 472 So.2d 428 (Miss. 1985); Cabello v. State, 471 So.2d 332 (Miss. 1985). See also, Box v. State, ...


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