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JOHN M. WELLS v. STATE OF MISSISSIPPI

DECEMBER 02, 1987

JOHN M. WELLS
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., ROBERTSON and GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case, concerning first degree arson, comes to the Court from the Circuit Court of Tishomingo County, which, upon conviction, sentenced John M. Wells to five years in prison. We affirm.

On September 6, 1984, at approximately 3:30 p.m., fire totally destroyed a house, owned by John M. Wells, appropriately located just south of Burnsville. Wells attributed the loss either to a kitchen fire, since the stove was then in use, or to burning leaves. Thereafter, Wells made a claim against his insurance carrier, seeking $51,500 as damages to his house and its contents. Wells had purchased a homeowners policy the preceding month, replacing his builder's risk policy.

 At trial, an expert witness, who had investigated the scene, testified that the fire had been set. He also noted that the house had lacked floor coverings, dry wall insulation, drains, interior plumbing, a septic tank, and electrical wiring, concluding that the dwelling was" merely a shell. "Additionally, the expert witness found no evidence of some items present on the inventory list, submitted by Wells to the insurer, though they should have survived the conflagration.

 Meanwhile, Wells' expert witness testified that he was unable to conclude from the evidence that the fire was set. Wells' contractor also testified that the house was" ninety-five percent complete "and full of furniture.

 Finally, a neighbor testified that Wells had never moved into the house, though this is contrary to Wells' signed statement given the insurance adjuster.

 I.

 Initially, Wells contends that the trial court erred, when it admitted into evidence certain testimony in violation of Unif. Crim. R. Cir. Ct. Prac. 4.06. We disagree.

 At trial, Wells objected to testimony given by Danny Bullard, Wells' insurance agent, who, quoting Wells, stated that the fire perhaps resulted either from his cooking on the stove or from his leaf burning. In particular, Wells argued that the State had failed to provide the defense with the remarks in violation of Rule 4.06.

 Bullard's account is entirely consistent with Wells' statement to his insurer, admitted into evidence without objection. It is neither an admission of guilt nor contrary to an asserted defense. Previously, the Court has held that the State's failure to" disclose an oral statement by a defendant which was neither an admission of guilt nor inconsistent with his asserted defense was not reversible error even though there was a violation of Rule 4.06. . . . "Boches v. State, 506 So. 2d 254, 262 (Miss. 1987). See also, Moore v. State, 508 So. 2d 666, 668 (Miss. 1987), McKinney v. State, 482 So. 2d 1129, 1130 (Miss. 1986), Buckhalter v. State, 480 So. 2d 1128, 1129 (Miss. 1985).

 Relatedly, Wells contends that the trial judge erred when he allowed the State to introduce an expert's testimony, where it had failed to provide the defense with a copy of the expert's full report. Rather, two days before the trial, Wells received a copy of the expert's conclusion, drawn from only one page of the report.

 Previously, this Court has reversed convictions, where the State surprised a defendant at trial with previously undisclosed lab reports. Acevedo v. State, 467 So. 2d 220, 224 (Miss. 1985); Harris v. State, 446 So. 2d 585, 588-9 (Miss. 1984). Alternately, where there was no unfair surprise, the previously undisclosed reports did not necessarily dictate a reversal. Jones v. State, 481 So. 2d 798, 802-3 (Miss. 1985).

 Here, the defense attorney initially objected to the expert's testimony; yet, during the course of the testimony, he withdrew the objection. Perhaps, he agreed that the testimony was admissible. Perhaps, he recalled the report from

 an inspection of his client's file at the district attorney's office. Perhaps, he sought an advantage, relating to his contention that Wells had not committed first degree arson, regardless of his crime. See, Sections II and III. Whatever the reason, he ...


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