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FRANK TALBERT MALONE v. STATE OF MISSISSIPPI

MARCH 12, 1986

FRANK TALBERT MALONE
v.
STATE OF MISSISSIPPI



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

We have heretofore affirmed Frank Talbert Malone's conviction of armed robbery and sentence of eleven years imprisonment. Malone v. State, ___ So.2d ___ (Miss. No. 56,053, decided Feb. 26, 1986) (Malone I) (not yet reported). The case is now before the Court on Malone's application for post-conviction relief. Miss. Code Ann. 99-39-1, et seq. (Supp.1985); see Sanders v. State, 439 So.2d 1271, 1276 (Miss.1983).

Malone's specific complaint is that there was a formal plea bargain agreement between the prosecution and its star witness, Marilyn Page, which was not disclosed to him prior to trial. *fn1 The substance of the alleged agreement was that, in exchange for testifying as a State's witness, Page would be given the most lenient lawful sentence for the crime of armed robbery: three years imprisonment. Malone claims that withholding of the plea agreement inhibited his counsel in his effort to cross-examine Page and abridged his due process rights.

 Nondisclosure of the prosecution's plea agreement with a codefendant under circumstances where the terms of that agreement might reasonably touch upon the codefendant's credibility or otherwise undermine confidence in the outcome of the trial may vitiate a criminal conviction and require a new trial. United States v. Bagley, 473 U.S. ___, 105 S. Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104 (1972); Fuselier v. State, 468 So.2d 45, 50-51 (Miss.1985); Barnes v. State, 460 So.2d 126, 131 (Miss.1984); King v. State, 363 So.2d 269, 274 (Miss.1978). This rule emanates from the familiar case of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963). Impeachment evidence as well as exculpatory material are within its scope. United States v. Bagley, 87 L.Ed.2d at 490. Failure to produce Brady material does not depend upon the good faith or bad faith of the prosecution, Brady v. Maryland, 373 U.S. at 87, 10 L.Ed.2d at 218, nor upon the specificity of the defense request. United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 49 L.Ed.2d 342 (1976).

 The question before us is how these rules apply to the factual and procedural context of this case. We begin with

 the fact that Malone made no specific pre-trial discovery request in discovery for plea agreements with Marilyn Page. He made only a general request for exculpatory material. When

 Page was put on the witness stand, however, she was asked the

 following sequence of questions:

 DIRECT EXAMINATION OF WITNESS, MARILYN PAGE, RECORD AT 300:

 BY MR. NECAISE: now, Marilyn, has anybody promised you any reward or leniency or favoritism for your testimony here?

 A. No, sir.

 Q. No one has made you any promises?

 A. No, sir.

 Q. Do you know what is going to ...


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