Moore v. StateMoore v. State
Larry Lee Moore wаs indicted by the Grand Jury of Clay County, Mississippi, on April 4, 1985, for the murder of Mathew Temple. After a jury trial, Moore was convicted and sentenced to serve life in the custody of thе Mississippi Department of Corrections. Moore appeals his conviction and sentence, assigning one error.
On November 5, 1984, around 7:30 p.m., Larry Lee Moorе shot and killed Mathew Temple. Understandably, there were two versions as to how the incident came about. The state adduced evidence at trial that Moore and Temple had been involved in a pool room fight earlier in the evening. After the pool room manager broke up the fight and asked Temple and his friend,
Larry Lee Moore took the stand in his own defense. His version of the events corroborated the earlier fight in the pool room. After the manager threw them out, Temple and Jefferson picked up broken beer bottles outside and stаrted yelling that if Moore and his friend, Collins, came out they would kill them. Moore and Collins stayed in the pool room another 15-20 minutes, then went out and headed for their car. Jefferson and Temple began following them down the street and came toward the car with broken bottles. Moore and Collins got in the car and locked the doors. Tеmple told them to get out of the car because he was going to kill them. Moore testified that he had his gun with him in the car and that he laid it down by his leg, opened the door tо step out of the car, at which point Temple threw down his bottle and went into his pocket. At that point, Moore shot him. He testified he was afraid of Temple because he had seen Temple the day before with a .32-calibre gun and knew that Temple always carried some sort of weapon. He shot twice because after the first shot, Temple was still coming out of his pocket like he had a weapon. Moore‘s version of events was corroborated, in various parts, by four witnеsses.
We are asked on appeal to consider one proposition:
The Court Erred in Overruling Appellant‘s Motion to Suppress Statements of Appellant Contained in the Police Report of Sergeant James Collins Due to the State‘s Failure to Timely Provide Said Report to Appellant as Required by Rule 4.06 of the Mississippi Uniform Criminal Rules of Circuit Court Practice.
Shortly after the shooting, while the defendant was under the physical restraint of Sergeant James Collins, Moore made the following statement: “Yes I shot him. I‘ll shoot your damn ass.” The statement was later recorded by Sergеant Collins in his report dated November 5, 1984. The state made its initial tender of discovery in a letter dated April 8, 1985, which stated, “1. the recorded statement to any law enforcement officer: none.” Supplemental discovery was provided by letter dated July 8, 1985, but again disclosed no statements of Moore. On July 12, 1985, shortly before the selection of the jury, the state gave a copy of Sergeant Collins’ report to defense counsel; Moore moved to suppress the report which contained his stаtement, or in the alternative, to be allowed a brief postponement to examine the report so as to be able to prepare a defensе. The lower court denied the motion to suppress and also denied the motion for a continuance.
Moore argues that because
The state, citing Morris v. State, 436 So.2d 1381 (Miss. 1983), points out that the record contains no written request by defense counsel for the state to produce discovery under
At the outset, we hold that the statement recorded in Sgt. Collins’ report was discoverable under
We are faced here, however, with a situation entirely different from that existing in our previous cases concerning discovery issues. Here, the state instituted the discovery before the defendant made a written request for it under
As we said in Foster v. State, 484 So.2d 1009, 1011 (Miss. 1986), there is no per se rule with respect to discovery violations, which we have repeatedly said, beginning with Box v. State, 437 So.2d 19 (Miss. 1983). In Foster we reversed because the trial judge refused to grant either a reasonable continuance under the circumstances or a postpоnement. The same legal result must follow in this case, for to affirm it in this situation would allow the prosecutor to volunteer discovery to defense counsel before defense counsel has filed a written request for discovery, and then withhold information that otherwise the state would be obligated to furnish under
We hasten to point out that the reasoning we engage in here in no way diminishes the application of Morris v. State, 436 So.2d 1381 (Miss. 1983), and its progeny, which declares that any request for discovery under
We reiterate that, “[w]here the state is tardy in furnishing discovery which it was obligated to disclose, the defendant is entitled upon request to a continuancе postponement of the proceedings reasonable under the circumstances.” Foster v. State, 484 So.2d 1009, 1011 (Miss. 1986). We also reiterate to prosecuting attorneys and defense attorneys alike our commitment to the proposition that “justice is more nearly achieved when, well in advance of trial, each side has reasonable аccess to the evidence of the other.” Box v. State, 437 So.2d 19, 21 (Miss. 1983).
Moore‘s conviction is reversed and this case is remanded for a new trial consistent with this opinion.
REVERSED AND REMANDED FOR A NEW TRIAL.
ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON, GRIFFIN and ZUCCARO, JJ., concur.