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LARRY C. STEWART v. STATE OF MISSISSIPPI

SEPTEMBER 02, 1987

LARRY C. STEWART
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., DAN LEE AND ANDERSON, JJ.

DAN LEE, J., FOR THE COURT:

This case presents an appeal taken from the Circuit Court of Greene County wherein Larry C. Stewart was convicted of kidnapping and sentenced to 20 years in the custody of the Mississippi Department of Corrections. He also was ordered to pay costs

and to undergo psychiatric and drug abuse testing and treatment, if necessary.

 He appeals, assigning two errors:

 I. 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 WAS ERROR.

 II. THE FAILURE OF THE COURT TO GRANT DEFENDANT'S MOTION FOR MISTRIAL UPON PROSECUTION'S DISPLAY OF AN ITEM NOT ENTERED INTO EVIDENCE AND THE DISPLAY OF WHICH WAS INFLAMMATORY AND PREJUDICIAL WAS ERROR.

 Because the prosecution failed to provide timely discovery and because we are unable to say with confidence that denying Stewart's motion for a continuance was harmless error, we reverse.

 I.

 After midnight, June 3, 1984, a sleeping 13-year-old, Jeanette McWilliams, accompanied her father, mother, sisters and aunt who were returning home to Moss Point from a trip to Meridian. Their car stalled on the highway a few miles from the city of Lucedale.

 A man later identified as the defendant, Larry C. Stewart, drove by in his blue van and offered assistance. He jumped the car off from his battery, but it did not go very far before it stopped again. Stewart helped push the car to the side of the highway and offered to drive one of them to use a telephone.

 Burnell Phillips, Jeanette McWilliams' mother, intended to go, but she did not know the telephone number of the neighbor in Moss Point whom she wanted to call. She awakened Jeanette, who knew the number, to go with her.

 Jeanette McWilliams got into the van first. Ms. Phillips stopped to tell her sister to remain with the other children, but before she could get into the van, Stewart pulled away with Jeanette in the front seat. Jeanette stated that the passenger-side door closed by itself when the van started forward.

 Ms. Phillips said she called to Stewart to take her, also. Instead, Stewart circled and headed back north, but did not stop when Ms. Phillips tried to flag him down. Ms. Phillips

 did not see her daughter again until about 4:00 a. m. at the Leakesville Police Department. Jeanette had no clothes from the waist down except for a jacket tied around her waist. She had scratches and bruises and told a story of being assaulted at knifepoint.

 Jeanette testified that the man driving the van took her down a country road, but did not stop at a house. He stopped along a dirt road, Jeanette stated, and he proceeded to assault her with a stick and a knife. Jeanette testified that Stewart also pulled off her shorts and panties, and attempted to sexually assault her, but she escaped. She stated she hid behind some dirt piles until she was sure Stewart was gone.

 Jeanette eventually found someone to drive her into town, where she was united with her family and later taken ...


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