Acevedo v. State

467 So. 2d 220
CourtMississippi Supreme Court
DecidedApril 10, 1985
Docket54738
StatusPublished
Cited by70 cases

This text of 467 So. 2d 220 (Acevedo v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acevedo v. State, 467 So. 2d 220 (Mich. 1985).

Opinion

467 So.2d 220 (1985)

Charles William ACEVEDO
v.
STATE of Mississippi.

No. 54738.

Supreme Court of Mississippi.

April 10, 1985.

*222 Boyce Holleman, Michael B. Holleman, Gulfport, for appellant.

Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

Shortly before 4:00 a.m. on June 17, 1981, Charles William Acevedo drove his wife, Sue, a/k/a "Tory", from work at a Biloxi strip joint to their Biloxi home. On arrival, an argument between them developed into a struggle in the vehicle for control of a revolver that ended in Tory's death. Acevedo was convicted of the manslaughter of his wife and sentenced to twenty years imprisonment without parole under Mississippi Code Annotated § 99-19-81 (Supp. 1984). His appeal asserts nine errors including non-compliance with Uniform Criminal Rule 4.06 and prosecutorial misconduct. We find that these two assignments of error have merit and require reversal for a new trial. Neither requires review of the weight or sufficiency of the evidence, and so we set forth only the facts pertinent to the discussion of the two issues.

I.

Immediately after the shooting, Acevedo drove Tory to the Gulf Coast Community Hospital emergency entrance and carried her in. Officer Robert Burris, a Biloxi policeman who was present by chance, used a gunpowder residue kit to take swabbing samples from Tory's hands as she lay in the emergency room, still breathing and connected to a CAT scan device. Her hands had not been washed. This test was not conducted on Acevedo because shortly after he arrived at the emergency room he washed the blood off his hands so that the gunpowder would also have been removed.

Dr. William Kinard, forensic chemist with the Bureau of Alcohol, Tobacco, and Firearms in Washington, D.C., ran tests on the gunpowder residue samples collected by Officer Burris from Tory's hands. If the tests revealed the presence of barium and antimony, the elements comprising the primer of a round of ammunition, this would be evidence that Tory's hands were in contact with the gun when it was fired. The results of Dr. Kinard's tests were contained in a report provided to defense counsel pursuant to a request under Mississippi Uniform Criminal Rule 4.06 for copies of any reports, scientific tests, experiments or comparisons by the state's expert witnesses. The report read:

RESULTS OF EXAMINATION:
The amount of antimony found on the hand swabs was insufficient to indicate the presence of gunshot residue; therefore, no testing for barium was conducted.
From these findings, no conclusion can be drawn as to whether the subject did or did not handle or fire a weapon.

Prior to trial, defense counsel spoke with Dr. Kinard and verified that his testimony would not vary from the written report. At trial, Dr. Kinard stated that two conclusions that can be drawn in this situation are that either Tory's hands were washed prior to the sampling, or her hands were not in close proximity of the weapon when it was fired. He said that if it were shown that her hands had not been washed prior to sampling, then one may conclude that they had not been in close proximity to the weapon when fired. When Dr. Kinard first testified to these alternative conclusions, defense counsel objected that his testimony directly contradicted his written report. The objection was overruled and defense counsel cross-examined Dr. Kinard at *223 length on whether he was changing from his official report. Dr. Kinard stood by what he said in the report but added that the conclusions he gave were his expert opinion based on experience.

In Acevedo's motion for a new trial, he produced an affidavit and written opinions of four experts, including the original developer of the test, all of whom stated that while the written report of Dr. Kinard was correct, his testimony at trial was pure speculation. The essence of the four experts' opinions is summarized in the following quotation: "An expert cannot conclude that the absence of metals (a negative finding) is proof (a positive finding) that this person has not discharged a gun recently."

The trial court's memorandum opinion overruling the motion for new trial acknowledged that Dr. Kinard's testimony surprised Acevedo and prejudiced his defense. The court concluded that the state had complied with Criminal Rule 4.06 despite the failure of the report to reflect what the court termed Dr. Kinard's "conclusive" opinion that gunshot residue would have been present on the victim's hands if the shooting had occurred in the manner described by Acevedo. The court relied upon the fact that defense counsel had the opportunity to question the expert prior to trial and to cross-examine him using his own report.

On appeal, Acevedo asserts that where an expert's report furnished pursuant to Criminal Rule 4.06 states that no conclusions can be drawn from the evidence, it violates the discovery rule for the expert to contradict his own report at trial because Acevedo was deprived of the opportunity to prepare effective cross-examination and secure his own experts to contradict the state's expert. Acevedo points out that the trial judge acknowledged that the expert's testimony both surprised Acevedo and prejudiced his defense. Nothing in Dr. Kinard's report or his pretrial discussion with defense counsel hinted that he would testify that Tory's hands were not around the revolver when it fired. Acevedo argues that had Dr. Kinard's written report been updated to reflect his conclusions at trial, defense counsel would have brought in one or more of the expert witnesses listed in his motion for new trial.

The purpose of the Uniform Criminal Rule 4.06 is to avoid unfair surprise to either the state or the defendant at trial. Harris v. State, 446 So.2d 585, 589 (Miss. 1984); Ford v. State, 444 So.2d 841, 843 (Miss. 1984). In Box v. State, 437 So.2d 19 (Miss. 1983), we said with regard to discovery under Rule 4.06:

The question presented here brings into direct conflict two important interests. First there is prosecution's interest in presenting to the jury all relevant, probative evidence. On the other hand, there is the accused's interest in knowing reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof which, of course, includes the names of persons the state expects to call as witnesses.
This state is committed to the proposition that these conflicting interests are best accommodated and that justice is more nearly achieved when, well in advance of trial, each side has reasonable access to the evidence of the other. See Rule 4.06 supra; Rules 26-37, Miss.R. Civ.P.

Id. at 21.

The majority of our cases alleging violations of Uniform Criminal Rule 4.06 involve either non-disclosed defendant's statements, See Jackson v. State, 426 So.2d 405 (Miss. 1983); Tolbert v. State, 441 So.2d 1374 (Miss. 1983); Ford v. State, 444 So.2d 841 (Miss. 1984); or non-disclosure of names of witnesses, see Overstreet v. State, 369 So.2d 275 (Miss. 1979); Thomas v. State, 377 So.2d 593 (Miss. 1979); Gallion v. State, 396 So.2d 621 (Miss. 1981); Spots v. State, 427 So.2d 127 (Miss. 1983); Box v. State, 437 So.2d 19 (Miss. 1983); Downs v. State, 449 So.2d 783 (Miss. 1984).

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Bluebook (online)
467 So. 2d 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acevedo-v-state-miss-1985.