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AUGUST 03, 1988




Willie Lee White was indicted for capital murder in the Circuit Court of Grenada County, on February 7, 1985. Under the "Enhancement Portion of the Indictment" he was charged as an habitual offender to be sentenced pursuant to Miss. Code Ann. 99-19-81 (Supp. 1984). In a hearing prior to the trial phase, defendant filed a motion to suppress physical evidence seized after the arrest, which the lower court granted. Additionally, the court excluded from evidence, following a pre-trial motion to suppress, photographs from the line-up which included the defendant and from which he was identified by a witness to the crime.

Trial commenced, and after hearing evidence pertaining to the guilt phase, the jury returned a verdict of guilty as charged. The same jury heard evidence on the sentence phase and unanimously found that the mitigating circumstances did not outweigh the aggravating circumstances, and that appellant should suffer the death penalty. The trial court sentenced him to death.

 On December 18, 1985, around eleven o'clock p.m., Officer Jerry Wayne Cross of the Grenada Police Department

 was flagged down in front of Poo-Nannie's Cafe in Grenada, Mississippi, by Willie Glen Ward, while in the course of a routine patrol. Ward advised Officer Cross that Annie Dale Lewis, the owner of Poo-Nannie's, had been shot, and that she needed an ambulance and medical attention. Lewis subsequently died three (3) days later, as a result of the bullet wounds.

 Ward, along with Tommy Bishop, had been at nearby Roger's Cafe where they heard two gunshots, which had brought them outside and toward Poo-Nannie's. Both men noticed a trail of money on the ground which lead to the cafe, and this prompted them to approach the establishment's door. Just then two people, a black male and a black female, exited the door and departed up the street. Neither Ward nor Bishop recognized the fleeing figures. Bishop then peered into the door, saw Annie Dale's body, and told Ward she had been shot. Cross then arrived during the course of his normal rounds.

 Ward told Cross that he and Bishop had seen two people leave the cafe just moments before, and the man had been carrying a gun in his hand.

 Cross looked down the street and saw the departing figure with a "blue steel pistol" in his hand, and after calling him to stop, proceeded to give chase after the man changed his pace from a walk to a run. Cross was unable to catch the man and lost sight of him for a period of time, but when he did see him again Cross noted a black woman running alongside of the man.

 In the course of the chase, Cross eventually caught the woman, one Willie Ruth "Bessie" Anderson. The black male escaped.

 In a hearing on a motion to suppress physical evidence, the following testimony was taken from police officers who investigated the shooting and/or participated in the defendant's arrest:

 On the day following the shooting at Poo-Nannie's, December 19, 1985, at approximately 11:30 a.m., Officer Arnold Hankins of the Mississippi Highway Patrol was driving along Interstate 55 when he heard a dispatch over the radio in which it was reported that a woman who lived on Hardy Road had seen two black males run by her house who aroused her suspicions. This woman - Lottie Frances Harris - had heard about the incident, and knew a manhunt was being conducted for two black men in the area; hence her call to the sheriff's office to report them.

 Officer Hankins exited at Coffeeville and headed north to the county line on Route 51. He then decided "to ride on up on Cascilla Road a piece . . . and turn around and come back to 51." About a quarter of a mile up the road Hankins spotted two black males, one fitting the description of a suspect in a shooting he had heard of in a radio transmission the night before given to him by Police Captain Joe Durr. Durr had informed him that there had been a shooting over at Annie Dale Lewis' place by two black males, "one possibly wearing blue-jeans and a white tee-shirt" .

 Based upon this, Hankins pulled up behind the men and, because they appeared to be partially frozen, he claimed to have had a reasonable suspicion sufficient to tell them to lay on the ground and spread their hands. He asked for identification, received none, and proceeded to frisk them for such. In his search he found a Crown Royal bag containing money, which he laid on the hood of the patrol car. Officer Johnny Grantham arrived, and a .38 caliber pistol was removed "from one of the subjects."

 Durr had told Hankins that the department was looking for one James White and one Willie White in connection with the shooting. He also told Hankins the Grenada Police Department had a warrant on Willie White.

 Grantham had also visited the scene of the crime, and after an investigation there went to the Grenada County Hospital Emergency Room to which Lewis had been transported. In response to being asked who shot her, Lewis said that "it was that old thuggish White boy that had been sent to the pen." This statement was excluded at the trial because it was not shown that the deceased knew she was dying.

 Grantham said that there were outstanding warrants for Willie White for assault and for the robbery, as well as one for aggravated assault on another occasion.

 Finally, Bruce Partridge, an investigator with Miss. Highway Patrol testified to the call received from Lottie Harris. He and Officer Johnny Lovorn headed up Highway 51 thereafter and arrived just a few minutes after Grantham. Lovorn reached over and pulled the gun out of Willie White's belt.

 Willie Lee White and L. V. White were placed under arrest and taken to the Grenada Police Department. Photographic identification of Willie Lee White was made by Sam Spearman two or three days later, who placed Willie Lee

 White at the scene of the crime and as the individual with the gun in his hand. Sam Spearman, along with his uncle Jimmy Earl Spearman, had been sitting in a car on a hill near Poo-Nannie's when the shooting occurred. Ward recalls seeing one of the Spearman boys at the cafe; Bishop does not.

 Willie Lee White, Jr. was indicted for capital murder on February 7, 1985, and under the "Enhancement Portion of the Indictment" he was charged as an habitual offender to be sentenced pursuant to Miss. Code Ann. 99-19-81 (Supp. 1984). As a result of Judge Morgan's having sustained defendant's motion to suppress, all physical evidence taken from the arrest was excluded, including a gun and a Crown Royal Bag. [NOTE: No finding as to probable cause was made; the judge simply stated that Hankins, a highway patrolman whose jurisdiction did not extend to Cascilla Road, was without authority of law to make the arrest]. Additionally, the court excluded from evidence, following motion to suppress, the photographs used in the photographic line-up shown by Officer Greg Harris of the Grenada Police Department to Sam Spearman, as the product of an illegal arrest. The court did, however, allow Spearman's in-court identification of the defendant, saying that:

 1. That the witness had ample opportunity to view the Defendant in this case; that the Court has observed the witness and has concluded that he had the ability to make the determination and recall the Defendant. His attention was drawn to the Defendant for sufficient opportunity for that, and that there was a short time between the time of his sighting of the Defendant and his identification of the Defendant in this case.

 The Court is going to find that based on the totality of the circumstances that in this case there is no violation of any applicable constitutional rule that would prohibit this witness, who is present at trial, who possesses the knowledge and the ability to identify the Defendant, from observations at the time of the crime, and the Defendant is physically present here today.

 The substance of the State's case at trial primarily was predicated upon the testimony of witnesses Sam and Jimmy Earl Spearman. Both Sam and Jimmy gave statements to the officers. Jimmy's pre-trial statement contradicted his trial testimony. Sam's testimony was consistent as to material

 matters. They testified as follows: the two were seated in a car at a point up on a hill approximately 104 feet from the entrance to Poo-Nannie's. They saw two black men and a black woman enter the cafe in a well-lit area. Sam states that he recognized the defendant by sight, but not by name. (James Earl knew Willie Lee White both by name and by sight). The boys (James was 18 and Sam 16 years of age at the time) saw three people - including Willie White - approach the cafe and enter its door. They heard shots and then saw one man leave with a sack of money, some of which was falling out behind him in a trail-like manner. This man did not have a gun. After the young men left the car, they saw the defendant and the woman come through the door; the defendant had a gun in his hands. They then saw this couple proceed up the street.

 Sam states that he got out of the car and joined the crowd gathering outside of Poo-Nannie's. James Earl states that he was present in the doorway when the two made their getaway. Also, James verifies the statement of other witnesses that several went to the door of the cafe and saw the defendant at the cash register with a gun in his hand and Mrs. Lewis lying on the floor shot in the mouth. Present with the defendant was Willie Ruth "Bessie" Anderson. She had no gun.

 Also testifying was Dora Lee Jackson, who stated that she was present at a party on Union Street in Grenada on the night of the killing, when at approximately 8:00 or 8:30 in the evening the defendant, his brother and Anderson appeared. The purpose of her testimony was to show that the trio had been together during the evening in question and that the defendant at that time had a gun; however, the judge excluded the evidence concerning the gun on the ground that this was evidence of another crime - a felon carrying a concealed weapon.

 The deceased's son, Richard Lewis, appeared as a witness and stated that his mother at closing time at Poo-Nannie's would take the change out of the cash register and put it in a paper sack and then place the paper sack in a Crown Royal sack where she kept her bills, and from there she would lock the Crown Royal sack in the trunk of her car. At the close of this witness's testimony, the State rested.

 The jury deliberated for forty minutes during the trial phase, and rendered a verdict finding the defendant guilty as charged. An additional fifty-five minutes of deliberation was spent during the sentencing phase, out of which the jury found defendant should suffer death for the

 capital murder of Annie Dale Lewis.

 Following motions for a judgment notwithstanding the verdict and for a new trial, both of which the trial court overruled, White appeals his guilt and sentence to this Court.



 The State's compliance with Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice.

 Under this error appellant alleges the State failed to comply with Rule 4.06 in that: (1) the State failed to inform White fully concerning agreements reached between the prosecution and witnesses (Sam and James Earl Spearman) to be used against him; and (2) the State failed to disclose to appellant factual contradictions within the statements given by the Spearmans. White contends such error violates his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights to the U.S. Constitution, as well as his rights under Article 3, Sections 8, 14, 23, 26 and 28 of the Mississippi Constitution, and as such his conviction should be set aside. In support thereof, appellant cites Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) as illustrative of denial of due process where the prosecution failed to comply with discovery mandated under state law.

 In Brady, supra, at 373 U.S. 87, the Supreme Court held that the due process clause of the Fourteenth Amendment is violated where the prosecution suppresses evidence favorable to and requested by an accused, where the evidence is material either to guilt or to punishment, and which is done irrespective of the good or bad faith of the prosecution. The suppressed evidence in Brady involved extrajudicial statements of an accomplice to a murder. The high court declined to reverse Brady's conviction, stating instead that:

 We usually walk on treacherous ground when we explore state law, for state courts, state agencies, and state legislatures are its final expositors under our federal regime. But, as we read the Maryland decisions, it is the court, not the jury, that passes on the "admissibility of evidence" pertinent to "the issue of the innocence or guilt of the

 accused." Giles v. State, 229 Md. 370, 183 A.2d 359, supra. In the present case a unanimous Court of Appeals has said that nothing in the suppressed confession "could have reduced the appellant Brady's offense below murder in the first degree." We read that statement as a ruling on the admissibility of the confession on the issue of innocence or guilt. A sporting theory of justice might assume that if the suppressed confession had been used at the first trial, the judge's ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury just as it might have been done if the court had first admitted a confession and then stricken it from the record. But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance through the use of a bifurcated trial (cf. Williams v. New York, 337 U.S. 241, 93 L.Ed. 1337, 64 S. Ct. 1079)) denies him due process or violates the Equal Protection Clause of the Fourteenth Amendment.

 In Malone v. State, 486 So. 2d 367 (Miss. 1986), (Malone II), this Court granted a motion for post-conviction relief in part, concerning a case in which we previously affirmed the defendant's conviction for armed robbery and sentence of eleven years imprisonment. Malone v. State, 486 So.2d 360 (Miss. 1986) (Malone I).

 In Malone II the appellant's complaint centered on what he alleged to be a formal plea bargain agreement between the prosecution and its star witness, which was not disclosed to him prior to trial. The substance of Malone's agreement was that there existed an agreement between the witness and the state that, in exchange for testifying, the witness would be given the most lenient lawful sentence for the crime she had committed. Malone claimed the withholding of the plea agreement inhibited his counsel in his efforts at cross-examining the witness and abridges Malone's due process rights. This Court agreed, and said that:

 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 area within its scope. United States v. Bagley, 473 U.S. at ___, 105 S. Ct. at 3380-81, 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, 83 S. Ct. at 1196-97, 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. at 2392, 2400-01, 49 L.Ed.2d 342 (1976).

 Malone, 486 at 368.

 Although the witness denied any such agreement, we held on appeal that Malone, including certain papers in the record, had made out "an adequate prima facie showing that there was an advance plea agreement between the prosecution and [the witness]." Malone at 369. These "papers" included a copy of the circuit court's order, entered 24 hours after Malone's conviction, accepting the witness' plea and sentencing her to the minimum sentence. The substance of Malone's argument was further supported by an affidavit executed by an attorney for one of Malone's and the witness' co-defendants. The attorney therein stated that prior to trial such a plea bargain agreement did, in fact, exist.

 We held this to be "evidence favorable to the accused," Brady, 373 U.S. at 87, 83 S. Ct. at 1196, 10 L.Ed.2d at 218, and as such afforded Malone a basis for post-conviction relief. Miss. ...

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