IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-KA-00900-SCT
DARRAL BELL
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/18/2006 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHARLES E. MILLER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS DISTRICT ATTORNEY: RONNIE LEE HARPER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED-07/19/2007 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE SMITH, C.J., EASLEY AND DICKINSON, JJ.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. This case comes to this Court on appeal from the Circuit Court of Amite County, by
defendant Darral Bell. On March 9, 2005, Bell was indicted by an Amite County grand jury
for the murder of LeCedric Hurst. On May 18, 2006, Bell was convicted of manslaughter
and sentenced to a term of fifteen years with five years suspended in the Mississippi
Department of Corrections. Bell subsequently filed a Motion for Judgment Notwithstanding
the Verdict, which was denied. Bell then timely filed a Notice of Appeal to this Court.
¶2. Finding no errors by the trial court, we affirm. FACTS
¶3. On October 30, 2004, Bell and Hurst were involved in an altercation at the residence
of Edna Spears, a relative of Hurst, with other witnesses present. Bell testified that Hurst
struck him with his hand, but Bell did not respond to this attack. Bell left Spears’s
residence, driving a white F350 work truck, with one passenger, Kerwin Bland. Hurst left
Spears’s residence driving a four-wheeler and traveled onto Perry Road. The two vehicles
were traveling in the same direction at the time of the collision. Hurst was killed in the
collision. Dr. Steven Hayne, who performed an autopsy on Hurst’s body, testified that Hurst
died of massive internal injuries, including lacerations to his liver and aorta. The Amite
County Sheriff’s Office responded to the scene of the wreck. Officer Anthony Reeves made
initial inquiries as to the events causing the wreck.
¶4. Bell was arrested at 11:20 p.m. on October 30, 2004. On March 9, 2005, Bell was
indicted for the murder of Hurst. An Amite County jury subsequently found Bell guilty of
manslaughter and sentenced him to a term of fifteen years with five years suspended in the
custody of the Mississippi Department of Corrections. The trial court denied Bell’s motion
for judgment notwithstanding the verdict (JNOV). From that conviction and denial, Bell
appeals to this Court, raising the following seven issues on appeal:
I. Whether the evidence is insufficient to support conviction pursuant to the indictment and relevant law. The lower court erred in not granting a judgment notwithstanding the verdict pursuant to Rule 50(B) of the Mississippi Rules of Civil Procedure.
II. Whether the lower court erred by not dismissing the indictment or granting mistrial when it allowed testimony of prior bad acts of the accused.
2 III. Whether the lower court should have dismissed the case based on illegal arrest.
IV. Whether the lower court erred in its failure to dismiss the case based on discovery violations.
V. Whether Bell’s Miranda rights were violated and the court erred in not suppressing any and all statements made by Bell.
VI. Whether the lower court erred in not dismissing the indictment for failure to comply with Rule 6.03.
VII. Whether the lower court erred in denying Bell’s motion to dismiss on the basis of spoliation of evidence.
DISCUSSION
I. Sufficiency of the evidence
¶5. First, Bell asserts that insufficient evidence supported the verdict, and thus the trial
court should have granted his motion for JNOV. Bell argues that the State’s case rested
entirely on the testimony of Kerwin Bland and other witnesses, which should have been
suppressed based on the unreliability of these witnesses. Bell also argues that Bland gave
no independent corroboration of the evidence. Further, Bell asserts that the trial court erred
by not suppressing physical evidence such as the truck, the four-wheeler and photographs.
The State counters that the record reflects that the evidence supporting Bell’s conviction did
not rely entirely upon Bland’s testimony. Further, the State argues that Bland’s testimony
as to what he witnessed was not shown to be credible. Citing McClain v. State, 625 So. 2d
774, 778 (Miss. 1993), the State asserts that the denial of Bell’s motion for JNOV was proper
because sufficient credible evidence supports the denial, including eyewitness testimony,
voluntary inculpatory statements and statements against interest.
3 ¶6. In reviewing a denial of a motion for a JNOV, this Court must consider all of the
evidence in the light most favorable to the State. McClain, 625 So. 2d at 778 (citing
Esparaza v. State, 595 So. 2d 418, 426 (Miss. 1992)); Wetz v. State, 503 So. 2d 803, 808
(Miss. 1987); Harveston v. State, 493 So. 2d 365, 370 (Miss. 1986). The credible evidence
which is consistent with the guilt must be accepted as true. Id. (citing Spikes v. State, 302
So. 2d 250, 251 (Miss. 1974)). Matters regarding the weight and credibility of the evidence
are to be resolved by the jury. Id. (citing Neal v. State, 451 So. 2d 743, 758 (Miss. 1984);
Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980)). This Court will reverse only
where, with respect to one or more of the elements of the offense charged, the evidence so
considered is such that reasonable and fair-minded jurors could only find the accused not
guilty. Id. (citing Wetz, 503 So. 2d at 808; Harveston, 493 So. 2d at 370; Fisher v. State,
481 So. 2d 203, 212 (Miss. 1985)).
¶7. Kerwin Bland, the son of Edna Spears, was present at Spears’s house on the night that
the wreck occurred. Kerwin left the house with Bell following the argument between Bell
and Hurst. Kerwin was riding in the truck with Bell when the wreck occurred. At trial,
Kerwin testified that Hurst came up behind the truck and when Hurst got ready to pass the
truck, Bell “cut over” on him. Kerwin testified that he could hear and see Hurst’s four-
wheeler when it was beside the truck. He also testified that Bell looked back through the
window toward the four-wheeler before cutting over on Hurst. Kerwin testified that after
the truck hit the four wheeler, the truck continued to the left and between two trees in a
nearby yard. Damage to the driver’s side of the truck is shown in the photographs,which
were admitted into evidence. Kerwin also testified that after the wreck occurred, Bell told
4 him not to say anything. Despite Bell’s argument that the evidence should be suppressed
based on the lack of reliability of Kerwin’s testimony, a review of the record shows Bell
offered no evidence to prove that this witness was unreliable. Furthermore, the question of
credibility of the evidence is not for this Court to decide, but is to be determined by the jury.
McClain, 625 So. 2d at 778.
¶8. Tannie Bland, Spears’s nephew, also testified that he was present at Spears’s home
on the night of the incident. Tannie witnessed the altercation between Hurst and Bell.
Tannie testified that he was standing in the driveway when Bell lowered the truck window
and said “bring your bad a** up the road, I got something for you.” Melvin Bland, Spears’s
brother, was also present at Spears’s home that night. Melvin testified to hearing Bell yell
at Hurst from his truck that he “had something for him if he come up the road.” Melvin,
who witnessed the accident from the front porch of Spears’s home, testified that Hurst got
ready to pass Bell when the truck cut over on him. Melvin testified that he could see Perry
Road from the porch because it was at the top of the hill from the house. After the collision,
Melvin saw Bell’s truck go to the left into a nearby yard. However, Melvin testified that the
truck then went out of his sight because a large house blocked his view.
¶9. Officer Reeves, who responded to the scene of the wreck, testified that Bell initially
told him that Hurst must have hit a tree. However, Reeves testified that Bell showed him the
truck and then told him a second time how the wreck happened. This time, Bell stated that
Hurst lost control of the four-wheeler when he went to pass him and that his four-wheeler
went into the mirror and the front side fender of the truck.
5 ¶10. Additionally, Lieutenant Gerald Wall testified that he interviewed Bell on November
1, 2004. Wall testified that Bell received his Miranda rights and gave a signed a waiver of
those rights at 4:50 p.m. that day. Wall then took Bell’s statement, which was handwritten
and signed by Bell. In the statement, Bell admitted that he and Hurst had an argument at
Spears’s home. Bell subsequently left the home in the work truck. Bell stated that in order
to stop Hurst from getting home, he drove in the middle of the road to prevent Hurst from
passing him. Bell stated that he would get over when Hurst tried to pass, until the last time
when he turned the wheel too far and lost control of the truck, causing Hurst to hit the front
wheel of the truck. Wall read this statement at trial.
¶11. Dr. Hayne, who performed an autopsy on Hurst, testified that Hurst died as a result
of massive internal injuries. Dr. Hayne testified that Hurst’s injuries would be consistent
with injuries resulting from a truck and four-wheeler crash where the truck ran over the
decedent. Officer Cecilia Kazery, an accident reconstructionist and rebuttal witness for the
prosecution, testified that she reviewed the reports, Bell’s statement, and the photographs in
evidence in addition to personally observing the truck and scene of the wreck. From this
evidence, Kazery opined that Hurst was run over by Bell while traveling beside him or
attempting to pass the truck. Based on her examination of the photographs and scene of the
wreck, Kazery testified that Bell’s truck went through two trees in a nearby yard after
colliding with Hurst’s four-wheeler, which supports the other witnesses’ testimony of how
the wreck occurred.
¶12. Based on the evidence introduced at trial, we find sufficient evidence in support of the
verdict. Therefore, the trial court did not err in denying Bell’s motion for JNOV.
6 II. Prior bad acts
¶13. Next, Bell argues that the State improperly elicited testimony from officers that Bell
committed a crime by driving in the middle of the road. Bell argues that this testimony
violates 404(b) of the Mississippi Rules of Evidence, which prohibits the admission of
evidence of other crimes or bad acts to prove the character of a person in order to show that
he acted in conformity therewith. Essentially, Bell asserts that the trial court erred by
admitting evidence that he was illegally driving in the middle of the road, a charge for which
Bell was not indicted. The State argues that this evidence was properly admitted as it was
introduced through Bell’s own statements to investigators after he was given a Miranda
warning and signed a waiver of his rights.
¶14. The admissibility of evidence rests within the trial court's discretion. Hall v. State,
611 So. 2d 915, 918 (Miss. 1992) (citing Wade v. State, 583 So. 2d 965, 967 (Miss. 1991)).
This Court will reverse the ruling of a trial court only where such discretion has been abused
and a substantial right of a party has been affected. Johnson v. State, 666 So. 2d 499, 503
(Miss. 1995)(citing M.R.E. 103(a)).
¶15. This evidence was part of Bell’s voluntary statement to the investigators that he drove
in the middle of the road to prevent Hurst from passing him. At trial, Lieutenant Wall read
the statement during his testimony with no objection from the defense. Specifically, Bell
wrote that “[i]n order for me to stop him from getting home, I drove in the middle of the road
to stop him from passing me.” His statement was then published to the jury without
objection from the defense. On redirect examination, the prosecution questioned Wall as to
whether Bell’s driving in the middle of the road and attempting to keep the victim from
7 passing his vehicle were against the law. The defense objected to the question. After the
trial court held a bench conference out of the hearing of the jury, the trial court sustained the
objection and excused the jury. At this time, the defense moved for a mistrial based on the
admission of the “prior bad act” of Bell. After hearing arguments from both sides, the trial
court stated that, while it sustained the objection to the testimony that prosecution sought to
elicit, the prosecution was not attempting to admit a prior bad act because the actions in
question happened at the time of the alleged crime. When the jury was brought back into the
courtroom, the trial judge advised the jury to disregard any response to this line of
questioning. Later in the trial, during the testimony of Officer Kazery, the trial court again
sustained an objection to the question of whether it is unlawful to drive in the middle of the
road.
¶16. This Court held in Ballenger v. State, 667 So. 2d 1242, 1257 (Miss. 1995) that
evidence of other crimes or bad acts is admissible to tell the complete story so as not to
confuse the jury. In Brown v. State, 483 So. 2d 328 (Miss. 1986), the Court stated that the
State has a “legitimate interest in telling a rational and coherent story of what happened . .
. .” Id. at 330. Further, where it is substantially necessary to present to the jury “the
complete story of the crime,” evidence or testimony may be given, even though it may reveal
or suggest other crimes. Id. This Court also stated, in Duplantis v. State, 644 So. 2d 1235,
1246 (Miss. 1994), that where another crime or act is "so interrelated [to the charged crime]
as to constitute a single transaction or occurrence or a closely related series of transactions
or occurrences," proof of the other crime or act is admissible. Id.
8 ¶17. We find that Bell’s voluntary statement that he was driving in the middle of the road
was part of “the story of the crime,” explaining the events resulting in the death of Hurst.
Furthermore, we find this act was admissible as it is so interrelated with the charge against
Bell that it constitutes a closely related series of occurrences. Therefore, we find that the trial
court did not abuse its discretion in admitting Bell’s statement that he drove in the middle of
the road. However, it was error for the prosecution to elicit testimony from Officer Kazery
that Bell committed a crime by driving in the middle of the road. This error was certainly
avoidable as the trial court had previously sustained an objection to similar testimony by
Lieutenant Wall. The trial court cured the first error by advising the jury to disregard the
testimony concerning whether it is unlawful to drive in the middle of the road. The trial court
further advised the jury that any time an objection is sustained, the jury should not consider
or speculate about what the answer would have been or anything of that nature.
Additionally, the trial court properly sustained the objection to the prosecution’s subsequent
attempt to elicit this testimony from Officer Kazery. Hence, we find that because of the trial
court’s rulings and curative instruction, the error was harmless. Therefore, this issue is
without merit.
III. Arrest
¶18. Bell argues that he was arrested, held and questioned without probable cause. The
State counters that the testimony of the investigating officer sufficiently shows probable
cause to justify Bell’s arrest under the totality of the circumstances test. Officer Reeves
observed the wreck scene involving the four-wheeler and the truck. The State argues that
9 Officer Reeves, who questioned the parties and observed the body of Hurst at the scene, had
probable cause for Bell’s arrest.
¶19. In defining probable cause in warrantless arrests, this Court stated that “[t]he officer
involved is charged to make a practical, commonsense decision whether, given the totality
of the circumstances, there is a fair probability that the person proposed to be arrested or
searched is involved in substantial criminal activity.” Alexander v. State, 503 So. 2d 235,
239 (Miss. 1987). Officer Reeves testified that after arriving at the scene of the wreck, he
was informed that Bell was the driver of the truck. Once Reeves approached Bell, he was
able to determine that he had been drinking by the smell of alcohol on his breath. Reeves
testified that he then asked Bell whether he had been drinking, and Bell responded that he
had consumed three or four beers. Reeves confirmed that Bell was the driver of the truck,
at which point he considered Bell a suspect. Further, Reeves’s report states that he arrested
Bell at 11:20 p.m. on October 30, after ascertaining that Bell was the driver of the truck and
had been drinking.
¶20. Based on Reeves’s observation of Bell at the scene and his confirmation from Bell
that he had been drinking and was the driver of the second vehicle in the accident, we find
that there was probable cause for Bell’s arrest. Therefore, this issue is without merit.
IV. Discovery violations
¶21. Bell asserts that the district attorney committed a discovery violation by submitting
the State expert’s report as to the examination of the truck and crime scene on the first day
of the trial. Citing West v. State, 553 So. 2d 8, 17-20 (Miss. 1989), Bell argues that the
failure of the prosecutor to provide notice of expert testimony before trial was a clear
10 violation of discovery rules and sufficient grounds for dismissal. The State argues that the
prosecution stated for the record that it was not calling an accident reconstructionist in its
case-in-chief, but would use an accident expert if Bell used one in his defense. The State
argues that the record reflects that the defense did not supply the prosecution with the
detailed report of its proposed expert, James Hannah, until the day of trial. The State also
argues that Officer Kazery, an accident reconstructionist, testified for the prosecution only
in rebuttal. The State further asserts that any delay in receiving Kazery’s report can be
attributed to the defense, since it failed to provide Kazery with a copy of Hannah’s report.
¶22. Based on the procedure first outlined in Box v. State, 437 So. 2d 19, 23-24 (Miss.
1983), when a trial court is faced with previously undisclosed evidence to which the
defendant has objected, it should give the defendant a reasonable opportunity to familiarize
himself with the evidence. Duplantis, 644 So. 2d at 1249-1250. If the defendant thereafter
believes he may be prejudiced by the admission of the evidence because of his lack of
opportunity to prepare to meet it, he must request a continuance. Id. A motion for mistrial
will also suffice "as a request for a continuance." Id. n. 13 (citing West, 553 So. 2d at 18
n.6). However, if the defendant fails to request a continuance, he waives the issue. Id.
Following such a request, the State may opt to proceed without the undisclosed evidence, or
the trial court must grant the continuance. Furthermore, failure to follow the Box guidelines
is prejudicial error, requiring reversal and remand. Id. at 1250 (citing Darghty v. State, 530
So. 2d 27, 33 (Miss. 1988)).
¶23. During pre-trial motions, the defense requested that the State disclose any impeaching
information that it may have obtained through its accident reconstructionist, Kazery. The
11 prosecution responded that it had not received any reports from her at that time, as it was
waiting on the report from the defense’s accident reconstructionist. The prosecution
informed the trial court hat it had not consulted an accident reconstructionist to call in its
case-in-chief, and that it would put on Kazery only to provide rebuttal testimony to the
defense’s expert testimony. The trial court then directed the prosecution to provide the
defense with an idea of what Kazery’s testimony would include after she had a chance to
review their expert’s report. At trial, following the testimony of Hannah, the defense rested
and the prosecution then called Kazery as a rebuttal witness. The defense did not object or
request a continuance before she testified. The record reflects that Kazery submitted her
report shortly after receiving Hannah’s report. Kazery testified that she received Hannah’s
report on the Friday before trial and faxed her report to the defense on the following Monday
morning. While Bell relies on West to support his position that the prosecution violated the
discovery rules by failing to provide notice of Kazery’s report until the start of trial, the
defense had notice of the prosecution’s rebuttal expert. The defense also was aware that
Kazery would not provide her report to be used in rebuttal until she had reviewed Hannah’s
report, all of which is evidenced by the pre-trial hearing held on May 2. Furthermore, the
failure of the defense to object to this testimony or request a continuance waived this issue.
V. Miranda rights
¶24. Next, Bell asserts that his Miranda rights were violated. Bell asserts that Lieutenant
Wall did not inform him of any charges against him prior to his giving any statements.
Further, Bell asserts that he was held in jail from October 30 until November 3 without
counsel and without being informed that he was charged with any crime. Citing Coulter v.
12 State, 506 So. 2d 282 (Miss. 1987), Bell asserts that the State failed to prove voluntariness
of his statements beyond a reasonable doubt. Bell argues that his statement was not
voluntarily given and was a result of coercion by the sheriff’s department, and thus the case
against him should be dismissed. The State counters that Bell’s statements were voluntarily
given to Lieutenant Wall after Bell signed a Miranda waiver. The State also argues that Bell
made oral statements to Officer Reeves at the scene that Hurst lost control of the four-
wheeler, causing the accident. The State submits that these initial statements were non-
custodial as they were in response to preliminary questions asked to assist in the investigation
of a death at the scene of a wreck. The State further asserts that the trial court properly found
no due process violation when Bell made his written statement to Lieutenant Wall.
¶25. This Court has held that to be subject to custodial interrogation, one must be both in
custody and undergoing interrogation. A subject is in custody when his right to leave freely
has been restricted. Roberts v. State, 301 So. 2d 859, 861 (Miss. 1974). The accused is
subject to interrogation when he is questioned by the police or the functional equivalent.
Wilson v. State, 936 So. 2d 357, 362 (Miss. 2006) (citing Pierre v. State, 607 So. 2d 43, 52
(Miss. 1992).
¶26. The State has the burden of proving the voluntariness of a confession. Agee v. State,
185 So. 2d 671, 673 (Miss. 1966). This burden is met by the testimony of an officer, or other
person having knowledge of the facts, that the confession was voluntarily made without any
threats, coercion, or offer of reward. Morgan v. State, 681 So. 2d 82, 89 (Miss. 1996) (citing
Agee, 185 So. 2d at 673). This creates a prima facie case for the State on the question of
voluntariness. Id. When objection is made to the introduction of the confession, the accused
13 is entitled to a preliminary hearing on the question of the admissibility of the confession,
which is conducted in the absence of the jury. Id. After the State has made out a prima facie
case as to the voluntariness of the confession, if “the accused offers testimony that violence,
threats of violence, or offers of reward induced the confession, then the State must offer all
the officers who were present when the accused was questioned and when the confession was
signed, or give an adequate reason for the absence of any such witness.” Id. (citing Lee v.
State, 236 Miss. 716, 112 So. 2d 254 (1959)). We also have held that “the resolution of
conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial
judge at the suppression hearing." Id. (quoting Chase v. State, 645 So. 2d 829, 841 (Miss.
1994)); see also Veal v. State, 585 So. 2d 693, 697 (Miss. 1991) (this Court will not reverse
trial court on conflicting testimony as to whether coercion used to obtain confession).
¶27. The trial court held a preliminary hearing on May 2 on Bell’s motion to suppress his
statements to the investigators. After hearing testimony from Officer Reeves, Sergeant John
Stoll and Lieutenant Wall, who were present when Bell made the statements in question, it
denied the motion to suppress. As to the oral statement made to Officer Reeves, the trial
court denied suppression, as there was no evidence that Bell was in any type of custodial
interrogation or being held at the time when Officer Reeves was making the initial inquiry
as to what happened. The trial court found that the written statement was given after Bell
was fully advised of his Miranda rights and voluntarily waived those rights. Therefore, we
find Bell’s right to a preliminary hearing on the question of the admissibility of the
confession was fully satisfied.
14 ¶28. At trial, Lieutenant Wall testified that Bell signed a statement acknowledging his
Miranda rights as well as a waiver of those rights at 4:50 p.m. on November 1, 2004, prior
to writing his voluntary statement at 5:30 p.m., which also is documented by State’s Exhibits
29 and 30. Based on this testimony, we find that the State made out its prima facie case on
the question of voluntariness. However, Bell testified that he was forced to give his
confession to the officers. Therefore, based on Bell’s testimony, the State was then required
to offer as witnesses all the officers who were present when the accused was questioned and
when the confession was signed. Morgan, 681 So. 2d at 89. The State offered all the
officers who were involved in the questioning of Bell. The testimony of Lieutenant Wall and
Officer Stoll, who conducted the interview, Chief Deputy Tim Wroten and Sheriff Perkins,
who did not participate in the interview but were in and out of the interview room, fails to
suggest that any threats or violence were used in obtaining Bell’s voluntary statement.
Therefore, we find that the State met its burden of proving the voluntariness of Bell’s
confession. As the record supports the trial court’s admission of Bell’s statements, we find
this issue lacks merit.
VI. Initial Appearance
¶29. Bell argues that he was improperly held in jail for more than forty-eight hours without
the benefit of an appearance, in which time he was questioned and forced to give a statement
without the benefit of an attorney. Bell cites Abram v. State, 606 So. 2d 1015, 1029 (Miss.
1992) for support. The State asserts that the record reflects that Bell’s non-custodial oral
statement was given on October 30, 2004, and his post-Miranda statement was given within
two days of the wreck and death of Hurst, on November 1, 2004. Further, Lieutenant Wall
15 testified that when he and Officer Stoll introduced themselves to Bell before the interview,
they explained to Bell that they were there to talk to him about being in jail for murder. The
State also argues that there is no evidence of coercion or suggestions being made to Bell prior
to his statements or unnecessary delay in bringing Bell before a magistrate.
¶30. Rule 6.03 of the Uniform Rules of Circuit and County Court provides that "[e]very
person in custody shall be taken, without unnecessary delay and within forty-eight hours of
arrest, before a judicial officer or other person authorized by statute for an initial
appearance." Bell was arrested on October 30, 2004, and was given an initial appearance on
November 3, a period exceeding the time frame in Rule 6.03. However, despite Bell’s
allegation that he was held in jail for three days without being informed of the charges
against him, the record shows that Bell was arrested at 11:20 p.m. on October 30, was
interviewed November 1 at 4:50 p.m., and gave his voluntary statement at 5:30 p.m., after
signing a waiver of his Miranda rights, a period clearly within forty-eight hours.
¶31. Bell relies on Abram, where this Court found reversible error in part due to failure to
provide an initial appearance according to Rule 6.03. However, in Abram, this Court found
that the confession was coerced, and that the State would not have obtained the uncounseled
confession if the defendant had been provided a timely initial appearance and access to
counsel. Abram, 606 So. 2d at 1029. This Court held that where the defendant's conviction
relied solely upon his confession, it was reversible error for the State to fail to provide an
initial appearance when a judge was available at all times. Id. In contrast to Abram, Bell’s
conviction did not rely solely upon his confession. See supra Issue I.
16 ¶32. In Jones v. State, this Court went through a detailed analysis of whether the failure
to provide a defendant with an initial appearance within forty-eight hours was prejudicial to
the defendant. 841 So. 2d 115, 131-134 (Miss. 2003). It is well-established that the failure
to provide an initial appearance for an accused within the time provided is not, in itself, a
reason to suppress a confession. Id.(citing Davis v. State, 743 So. 2d 326, 337 (Miss. 1999)).
In Morgan v. State, 681 So. 2d 82 (Miss. 1996) and Veal v. State, 585 So. 2d 693 (Miss.
1991), this Court found that a violation of Rule 6.03 alone will not result in the suppression
of evidence or reversible error where the defendant was informed of his rights and made a
knowing and voluntary waiver. Jones, 841 So. 2d at 132.
¶33. Furthermore, in Lawrence v. State, 869 So. 2d 353, 354 (Miss. 2003), this Court
found that although Rule 6.03 was violated, there was no Fourth Amendment violation for
failure to give the defendant an initial appearance until six days after his arrest. In this case,
as in the case at hand, the defendant was given his Miranda rights and waived his right to
an attorney prior to his confession. Id. This Court stated that it is clear from Gerstein v.
Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), that “the States certainly have the
right to enact rules and procedures to afford more rights than constitutionally required to
those citizens who are criminally charged. However, when, as here, such a rule is enacted,
and then violated, that rule violation does not necessarily rise to the level of a constitutional
violation.” Lawrence, 869 So. 2d at 356. Mississippi has adopted a procedure for a fair and
reliable determination of probable cause by a judicial officer promptly after arrest via Rule
6.03. Id. (see also County of Riverside v. McLaughlin, 500 U.S. 44, 53-55, 111 S. Ct. 1661,
1668-69, 114 L. Ed. 2d 49 (1991)). This Court held that “[i]f the procedure of Rule 6.03 is
17 followed, the Fourth Amendment rights of the accused are protected; however, the converse
does not necessarily follow ! failure to follow the exact procedure of Rule 6.03 does not
necessarily result in a Fourth Amendment violation.” Id.
¶34. As discussed in Issue V, the trial judge found that Bell’s statements were admissible
because Bell had been advised of his right to counsel and he knowingly, intelligently and
voluntarily waived this right before making his voluntary statement on November 1. We
uphold the trial court’s decision, as we find no evidence of coercion and find that Bell’s
written statement was voluntarily given within forty-eight hours of his arrest. Therefore, this
issue is without merit.
VII. Spoliation of the evidence
¶35. Finally, Bell argues that the destruction of the rearview side mirror of the truck
violated his due process rights. Bell argues that the sheriff’s department did not examine the
truck or four-wheeler. The Amite County Sheriff’s Department stored the truck for
approximately three to four days, photographed it, then released it to the owner, Chad
Stutzman. On April 10, 2006, the trial court held a motion hearing on this matter. At this
hearing, the prosecution stated that the truck was owned by Stutzman, Hurst’s employer, and
that it was used daily in Stutzman’s business. The prosecution informed the trial court that
it had contacted Stutzman and informed him that the defense’s expert wished to examine the
truck. The prosecution also informed the defense that the truck was located on the premises
of the owner for its inspection; however, the defense had done so at that time. The
prosecution pointed out that Stutzman had replaced the broken mirror, therefore the original
mirror was not available for viewing.
18 ¶36. After hearing both sides’ arguments, the trial court instructed the prosecution to ensure
that the truck was produced for inspection and that all information concerning the broken
mirror was available to the defense. The record reveals that Stutzman put the truck back to
work after it was released. He had the broken mirror replaced, and the remnants were
discarded by his crew. Stutzman could not account for the remnants, as they were discarded
in the woods where his crew was working. Since that time, the owner of the property has
cleared and burned off the property.
¶37. The State argues that, although Hannah testified that he thought having the broken
mirror would have helped his accident scene investigation, there was no statement in the
record showing how this would have helped Bell’s defense. Relying on Mason v. State, 440
So. 2d 318, 319 (Miss. 1983), the State argues that facts which are not supported by the
record should be ignored on appeal. As such, the State argues that there is no evidence that
the broken mirror was exculpatory, or that the prosecution had anything to do with its not
being available for inspection or testing.
¶38. In Murray v. State, we clarified three requirements to find a due process violation by
the State in a preservation of evidence case: (1) the evidence in question must possess an
exculpatory value that was apparent before the evidence was destroyed; (2) the evidence
must be such that the defendant would be unable to obtain comparable evidence by other
reasonably available means; and (3) the prosecution's destruction of the evidence must have
been in bad faith. Murray v. State, 849 So. 2d 1281, 1286 (Miss. 2003) (citing State v.
McGrone, 798 So. 2d 519, 523 (Miss. 2001).
19 ¶39. Although both sides and their experts disagree as to the exculpatory value of the
mirror, there is no need to inquire into the mirror’s exculpatory value for the purpose of
determining whether a due process violation occurred, because Bell fails to meet the last two
prongs of the test. First, the State photographed the broken side mirror from two different
angles. These photographs were admitted into evidence. Hannah testified that it would have
been important to have seen the actual, damaged mirror because it is hard to tell depth
perception through the pictures. However, Hannah went on to admit that photographs as well
as physical evidence are both reliable sources of information, and he has been trained to use
both. It should also be noted that the wreck occurred on October 30, 2004; however, Hannah
did not receive any information concerning this case until July 2005, several months after
Stutzman had repaired the mirror and returned the truck to use.
¶40. With regard to the last prong, bad faith is defined as "not simply bad judgment or
negligence, but rather . . . conscious doing of a wrong because of dishonest purpose or moral
obliquity; it is different from the negative idea of negligence in that it contemplates a state
of mind affirmatively operating with furtive design or ill will." Murray, 849 So. 2d at 1286
(citing Black's Law Dictionary 139 (6th ed. 1990)). In Tolbert v. State, this Court also stated
that an inference that the evidence was favorable to the defense exists only “where the
spoliation or destruction was intentional and indicates fraud and a desire to suppress the
truth.” Tolbert v. State, 511 So. 2d 1368, 1372 (Miss. 1987) (quoting Washington v. State,
478 So. 2d 1028, 1032-33 (Miss. 1985)). There is no evidence that the prosecution
intentionally caused the destruction of the mirror or caused it to be unavailable. Neither the
prosecution nor the defense was able to use the mirror in the preparation of its case.
20 ¶41. The record shows that the defense did not ask to see the truck until November of 2005.
The State contacted Stutzman to get permission for the defense to see the truck, to which he
agreed. Stutzman used this truck in his business during the week, but the truck was readily
available for viewing on the weekends. The trial court found that the truck was released to
its private owner several days after the wreck and that the damage to the truck was well
documented by the numerous photographs in evidence. For these reasons, the trial court
denied Bell’s motion to dismiss, finding no willful destruction of the evidence. We find that
the trial court did not err in its decision to deny Bell’s motion to dismiss.
CONCLUSION
¶42. Based on the foregoing reasons, we affirm the judgment of the Circuit Court of Amite
County.
¶43. CONVICTION OF MANSLAUGHTER AND SENTENCE OF FIFTEEN (15) YEARS WITH TEN (10) YEARS TO SERVE AND THE REMAINING FIVE (5) YEARS TO BE SERVED ON POST-RELEASE SUPERVISION FOR A PERIOD OF FIVE (5) YEARS UNDER THE SUPERVISION OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.
WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.