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DAVID REUBEN, JR. v. STATE OF MISSISSIPPI

DECEMBER 02, 1987

DAVID REUBEN, JR.
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P.J., SULLIVAN & ANDERSON, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

On October 21, 1985, David Reuben, Jr. was convicted of murder by the Circuit Court of Rankin County. From his conviction and sentence of life imprisonment, he perfects the instant appeal and assigns the following as error:

I. The lower court erred in overruling appellant's post trial motions for a judgment notwithstanding the verdict, or in the alternative for a new trial based on discovery violations of the State;

 II. The verdict of guilty was clearly contrary to the overwhelming weight of the evidence; and

 III. The lower court erred in admitting into evidence the confession of the appellant in violation of his Fifth and Sixth Amendments rights.

 On August 4, 1985, Michael Tucker, a mechanic, was requested by a Pelahatchie Police Officer to make a road call. Tucker and his friend, David Reuben, Jr., drove together to repair a disabled car which had been driven by two ladies.

 After the automobile had been fixed and Tucker and Reuben had been paid, but while they were still on the side of the road, Terry White, William Prestage, and Billy Lee Prestage drove past the scene and parked their car on the opposite shoulder. William Prestage approached Tucker's vehicle in which Reuben and Tucker were seated and asked Reuben if he were trying to get smart with him. William Prestage then struck Reuben in the face. The blow broke Reuben's glasses and cut his face.

 Reuben drove away from the scene but after a short distance stopped the car and let Tucker drive. Tucker immediately drove to the Pelahatchie Police Station to file a complaint against Prestage. When the police officers were told what had happened to Reuben," they (the police officers) laughed about it for a while. "Buddy Myers, the Chief of Police in Pelahatchie, was distantly related to William Prestage. No apparent effort was made by the Pelahatchie Police Department to act upon the complaint. Reuben and Tucker left the station.

 Later that night Prestage and Terry White came into the vicinity of Reuben's house on Dillard Avenue" talking loud. "White and William Prestage pulled up in front of Lonnie McNair's" wash house and store "to purchase a six pack of beer. They parked approximately 100 yards from Reuben's house. While Prestage was inside the store White moved over to the driver's side of the car and Prestage returned with a six pack and got in on the passenger's side of the automobile.

 According to Reuben, he feared for the safety of his wife, so he got his knife and went to wound Prestage in order to scare him off. According to the testimony of White, Reuben approached the car, looked in the window, and stabbed Prestage.

 White made two separate statements concerning what Prestage said while they were in the car. At trial he claimed that Prestage told him" to get out of there. "He told the police that what Prestage said was" To run over that son of a bitch. "White attempts to explain the discrepancy by saying that both statements meant the same thing.

 White drove away from the scene of the stabbing with Prestage's body in the car. He persuaded his fourteen year old brother to drive the car with Prestage's body in it to the police station.

 Chief Myers arrived at the police station after the body of William Prestage had been brought in. Terry White had told the police that David Reuben, Jr., was the one who had stabbed Prestage. Officer Dodd asked the suspect's father, David Reuben, Sr., if he would bring David Reuben, Jr., to the police station which he did.

 Officer Dodd arrested David Reuben, Jr., and gave him Miranda warnings. At this time Reuben, Sr., stopped the police questioning of his son by stating that his son would make no further statements until an attorney was present.

 Chief Myers stopped his questioning, but when Officer Dodd asked David Reuben, Sr., to take him to get the stabbing weapon, Myers continued his questioning and at this point David Reuben, Jr., gave an oral statement. Myers told Reuben that he would come to the jail tomorrow and reduce the statement to writing. While the statements were being taken, a crowd had gathered outside the Pelahatchie Police Station. Since the Pelahatchie Jail has been condemned, David Reuben, Jr., was transferred to the jail in Brandon after giving an oral statement.

 On August 5, 1985, the next morning, Chief Myers went to Brandon and gave Reuben his Miranda warnings and had Reuben reduce to writing the statement which he had given Chief Myers in Pelahatchie the night before.

 At the suppression hearing, the trial judge found the oral statements made at the police station in Pelahatchie were obtained through a violation of Reuben's Miranda rights and that the oral statement was involuntary. However, the trial judge found that the written statement of August 5, 1985, was admissible under the" totality of the circumstances "test set out in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L.Ed.2d 416 (1975). From this finding Reuben appeals.

 On September 11, 1985, Reuben's attorney filed a discovery motion pursuant to Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice. In this motion Reuben's attorney sought, among other things, the names and addresses of the State's witnesses in chief. Reuben

 was not furnished with the name of the State's primary witness, Terry White, until Friday, October 18, three days before the trial. Reuben argues that the trial court's failure to grant his Motion for JNOV and New Trial based upon this discovery violation and the denial of the continuance was erroneous and should be reversed.

 Reuben also argues that the verdict entered against him was contrary to the overwhelming weight of the evidence.

 I.

 THE LOWER COURT ERRED IN OVERRULING APPELLANT'S POST TRIAL MOTIONS FOR A JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE FOR A NEW TRIAL ...


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