DATE OF JUDGMENT: 08/12/94 TRIAL JUDGE: HON. JAMES W. BACKSTROM COURT FROM WHICH APPEALED: CIRCUIT COURT OF JACKSON COUNTY
The opinion of the court was delivered by: Roberts, Justice, For The Court:
ON PETITION FOR WRIT OF CERTIORARI
DISTRICT ATTORNEY: KEITH MILLER
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. This case is before the Court sitting en banc on a Petition for Writ of Certiorari. Jorge Ramos was convicted by a jury of the Circuit Court of Jackson County, Mississippi, on July 29, 1994, of Felony Possession of Marijuana with Intent and Possession of a Controlled Substance With Intent, and sentenced to serve fifteen years in the custody of MDOC. Ramos was additionally ordered to pay a fine of $10,000. The Court of Appeals affirmed the judgment and sentence of the lower court by decision rendered on June 3, 1994. The issues presented for certiorari review concern violations of Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice *fn1 and the trial court's allegedly improper admission into evidence of inculpatory statements and documents not disclosed to Ramos pursuant to his written discovery request and motion, and the admission by the trial court of certain expert opinion testimony from a police officer, not produced or disclosed to Ramos, in the form of lay opinion. We conclude that the cumulative errors found in the rulings of the trial court deprived Jorge Ramos of a fair trial, and reverse and remand for a new trial.
¶1. On January 30, 1993, Jorge Ramos, a 21 year old Mexican resident alien was passing through Mississippi on Interstate Highway I-10. Ramos, his wife and two children were traveling from Edcouch, Texas to a labor camp in Jacksonville, South Carolina, where they were going to work in the fields. Sergeant Bosarge with the Jackson County Sheriff's Department stopped Mr. Ramos for "weaving in the roadway." Bosarge walked the K-9 drug dog which accompanied him in his unit around Ramos' car. The dog alerted, and Bosarge obtained consent from Ramos to search Ramos' car. Bosarge located secret compartments under the car which contained thirty-seven pounds of marijuana. Bosarge's written narrative, which details the stop and arrest, makes no reference to any statements made by Ramos.
¶1. When the marijuana was located, Bosarge called the Narcotics Task Force, and the case investigator, Donald Bourgeois, came to assist. Bourgeois prepared a detailed, typed report concerning the arrest of Ramos and the recovery of the marijuana. Bourgeois' report states that "he officers talked to the driver and he stated that he had 50 lbs. of marijuana in false compartments under the car." Both of the above mentioned reports were provided in discovery pursuant to written request under Rule 4.06 and a detailed motion for discovery.
¶1. At trial, Ramos denied making the statement that he " had 50 pounds of marijuana in false compartments under the car." Counsel argued that an inculpatory statement of such importance would have been referenced in Bosarge's narrative report--it was not. Following Bosarge's testimony, the State advised the court that there was more information which it wished to introduce which was not provided in discovery, as follows:
1. On the side of the road, Ramos told Bourgeois that he had between 40-50 pounds of marijuana in the vehicle.
2. At the garage where the marijuana was removed, a subsequent oral statement was made by Ramos to Bourgeois. During the search of the vehicle, additional marijuana was found in the doors. Bourgeois approached Ramos and asked "how did they put the packaging in the framing of the car, and he explained to me that they took and cut holes in the back door panels of the passenger side of the vehicle and they were stuffed in there with duct tape." Bourgeois further stated that Bosarge was present during the time this statement was made, but Bosarge was never called back to the witness stand to testify about the oral statement, not revealed in discovery, which Ramos denied making.
3. Ramos allegedly stated that "when Mrs. Ramos purchased the automobile *fn2 , he took it to a shop and he had altered it and hid the marijuana in it without her knowledge."
4. Ramos told Bourgeois to look in the floorboard area in the back and there was more marijuana. Bourgeois looked there, and more marijuana was located.
¶1. Bourgeois then testified that he revealed all the above information to the attorney for the defendant when discussing the forfeiture and bond reduction from $200,000 to a reasonable amount. Ramos' counsel took exception to the allegation and stated that his conversation with Bourgeois involved the fact that Mrs. Ramos was in jail and that the children were in the hands of strangers at a detention center. Mrs. Ramos needed help with a bond reduction and was willing to consent to the forfeiture of the vehicle and $533 if it would get a recommendation of a bond reduction for the Ramoses.
¶1. The lower court overruled counsel's objections to allowing these previously undisclosed inculpatory statements admitted before the jury. *fn3
¶1. Bourgeois admitted on cross-examination that he reviewed his report the next workday, but he did not make any notation of all the incriminating information outlined above, or the alleged conversation with counsel.
¶1. The Ramoses claimed that subsequent to their arrest, they investigated Jose Santana, the man who allegedly sold them the vehicle in issue, and discovered that he was a convicted drug smuggler, and was wanted by the police. Prior to trial, and pursuant to reciprocal discovery, a copy of Santana's conviction was provided to the State along with a Bill of Sale for the vehicle dated January 27, 1993. The State was told that Ramos intended to use this information in trial. The State advised that it would have no objection or dispute that the transaction took place on the date alleged, and stated that someone had called the Texas Department of Motor Vehicles to confirm this information. The State related that all documents it had relating to the vehicle had been provided to the defense.
¶1. After Mrs. Ramos testified at trial, the State confronted her and impeached her testimony with documents which it previously claimed that it did not have in its possession. This information was in the possession of the State, but not provided. The information was allowed into evidence over the defense's objection that this constituted a further violation of discovery and improper impeachment.
¶1. A police officer, not qualified as an expert witness, gave lengthy testimony concerning the marijuana itself, and Ramos was not told that the marijuana had been destroyed three months prior to trial. The Judge did not allow Bourgeois' order into evidence ordering the destruction of the marijuana, but allowed Bourgeois to testify, in reply to the State's question of why the marijuana had been destroyed, that : A. Simply because I thought this case, the guy was pleading guilty to it, and it wouldn't be a trial involved in it, and it was also taking up added space in our evidence vault which we had no room for. We try to destroy the evidence as soon as we can, especially if we know trial-- that it's not going to court. And under this specific case, we felt like it was not going to court.
¶1. On cross-examination, Bourgeois admitted that he could have picked the phone up and called the District Attorney's Office, the court, or the jail screen computer to determine the status of the case, prior to destroying the marijuana. There is no indication that Ramos ever intended to plead guilty, and he maintained at trial that he knew nothing about the marijuana found in his vehicle.
¶1. Ramos made a prompt objection each time testimony was allowed as to matters that should have been disclosed but were not disclosed pursuant to discovery requests, followed by a motion for mistrial/continuance which was denied. Ramos was convicted of Possession of Controlled Substance with Intent, and sentenced to serve fifteen years in the custody of MDOC, and ordered to pay a $10,000 fine. The Court of Appeals, Payne, J., noted that each of the incidents outlined above constituted error, and that each error was properly preserved for appellate review, but ...