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ZACHARY McKINNEY v. STATE OF MISSISSIPPI

JANUARY 22, 1986

ZACHARY McKINNEY
v.
STATE OF MISSISSIPPI



BEFORE WALKER, P.J., DAN LEE AND SULLIVAN, JJ.

WALKER, PRESIDING JUSTICE, FOR THE COURT

Zachary McKinney was convicted by the Circuit Court of Monroe County of the armed robbery of the Tri-Mart convenience store in Amory, Mississippi. He was sentenced to a term of fifteen (15) years with the Mississippi Department of Corrections.

Among many assignments of error appellant assigns as error the following:

 THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENSE COUNSEL'S MOTION TO VOIR DIRE THE WITNESS, SHIRLEY MILLER, PRIOR TO HER TESTIMONY, TO DETERMINE HER COMPETENCY AS A WITNESS.

 As stated in Butler v. State, 217 Miss. 40, 53, 63 So. 2d 779, 782 (1953):

 In brief the general rule recognized by all of the authorities is that

 a party defendant, when he asks for it, is entitled as a matter of right to a preliminary examination into the mental capacity and competency to testify of the proffered witness and to a decision on that issue by the trial judge.

 It was reversible error for the trial court to deny appellant's motion to voir dire the witness as to her mental capacity.

 Appellant also assigned as error the following:

 THE FAILURE OF THE STATE TO TIMELY COMPLY WITH APPELLANT'S MOTION TO COMPEL DISCOVERY UNDER SECTION 4.06 OF THE MISSISSIPPI UNIFORM CRIMINAL RULES OF CIRCUIT COURT PRACTICE AND THE FAILURE OF THE COURT TO GRANT A CONTINUANCE FOR THAT REASON.

 On October 14, 1982, the appellant served the State with a motion to produce, requiring in part the State to produce all written statements taken from witnesses. The State complied with this motion, at least in part, on April 5, 1983, the day before trial by furnishing a statement made by the witness Shirley Miller on January 6, 1982.

 The defendant made a motion for a continuance so that he would have time to investigate the circumstances under which the statement was taken as well as to determine whether a second statement was made at or about the same time as the first statement. The trial court ruled that, although the motion for a continuance was made the day after the State complied with the defendant's motion for discovery, which motion had been made five months earlier, that the motion came too late.

 We are of the opinion that the trial court erred in refusing to grant a continuance under these circumstances even though it is not certain whether a second statement actually exists. The appellant acted promptly in making his motion. The reason that it was made on the morning that the trial was to begin was ...


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