Kelly v. State

553 So. 2d 517, 1989 WL 149674
Mississippi Supreme Court·Decided November 22, 1989·No. 07-KA-58681·Published·Cited by 91 cases

Opinion

553 So.2d 517 (1989)

Lewis (Louis) Reeves KELLY a/k/a "Bug" Kelly
v.
STATE of Mississippi.

No. 07-KA-58681.

Supreme Court of Mississippi.

November 22, 1989.

*518 George S. Shaddock, Pascagoula, for appellant.

Mike C. Moore, Atty. Gen., DeWitt Allred, Sp Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, PITTMAN and BLASS, JJ.

DAN M. LEE, Presiding Justice, for the Court:

On March 10, 1987, Lewis (Louis) Reeves Kelly, a/k/a "Bug" Kelly, was convicted of possession of a controlled substance with intent to distribute. He was sentenced to 20 years in the custody of the Mississippi Department of Corrections and fined $20,000.00. Aggrieved by his conviction and sentence, Kelly has perfected this appeal. After a thorough review of the record and arguments presented, we affirm.

A.

Kelly was the proprietor of a bar on Verlon Avenue in Moss Point, Mississippi, known as "Kelly's Bar." His activities at the bar had been the subject of a 14-month investigation by authorities. On the afternoon of August 15, 1986, through the combined efforts of approximately ten law enforcement officers from the Mississippi Bureau of Narcotics, Moss Point Police Department and Pascagoula Police Department, Kelly was served with a search warrant at his place of business. The warrant authorized the officers to search for rock cocaine, better known as "crack."

While being escorted to the room behind the bar, the 6'3", 327-pound Kelly reached into his groin area, removed a plastic bag, ran over his escort, entered the bathroom and flushed the bag down the toilet. Kelly was subdued by several officers, handcuffed and placed in the hallway while the search continued.

The toilet, after being hand-searched, was ripped from the floor, taken outside in front of the establishment and smashed to bits. The plastic bag was not found.

The City of Moss Point Water Department, Sewer Department and Fire Department were summoned to the scene. The water was turned off. After a determination that the Bar was connected to the main sewer system, the manhole cover 55 feet in front of the bar in the middle of Verlon Avenue was opened and secured by several officers. Five gallons of water was poured down the hole in the floor where the toilet had been and a plastic bag of off-white mush and rocks emerged from a drain pipe. It was later determined that the plastic bag contained cocaine.

A complete search of the premises yielded the following items: a matchbox containing eight (8) rocks of cocaine, two (2) mirrors, a bag of cotton swabs, an empty matchbox, three (3) spoons, a butane lighter, pieces of coat hangers, .357 magnum gun, a box of thin razor blades, loose razor *519 blades, scales, a bottle of Inositol, and three (3) boxes of Arm & Hammer baking soda. These items were taken into custody. Kelly and the manager of the bar, Jake Williams, were arrested and charged with possession of a controlled substance with intent to deliver.

An employee of Kelly's, Prosena Ariva Reddix, was also arrested. After giving a tape-recorded statement to the authorities, she was released without being charged.

Kelly and Williams were jointly indicted in October of 1986. Kelly filed a Motion for Discovery on October 13, 1986 and a Supplemental Request or Motion for Discovery on October 16, 1986. The State filed its Motion for Discovery on October 16, 1986. Both of these Motions were granted October 16, 1986.

Kelly was arraigned on December 15, 1986. He was granted a change of venue to Meridian, Lauderdale County, Mississippi, on February 9, 1987, and trial was set for March 9, 1987. Williams was granted a severance.

A hearing was held Tuesday, March 3, 1987 on Kelly's Motion to Suppress evidence recovered under the search warrant and Motion to Disclose Identity of Confidential Informant. Both motions were overruled. Additionally, both Kelly and the State were ordered to present a list of trial witnesses to the Court by the close of business on March 3, 1987, and to supplement those lists before Friday, March 6, 1987.

Kelly filed an additional Motion to Suppress and Motion in Limine on March 6, 1987, both of which were heard following the selection of the jury on March 9, 1987. The motions were overruled in part and sustained as to the following: any mention of marijuana, evidence of other crimes, and name calling.

Following the trial, conviction, and sentencing, Kelly filed a Motion for a New Trial. This Motion was overruled. Aggrieved with the outcome, he appeals and assigns four (4) errors.

B.

Assignments of Error I and III concern allegations of Rule 4.06 violations. For that reason, they are considered together.

ASSIGNMENT OF ERROR NO. I
The Trial Court Erred in Allowing into Evidence Certain Items which had not Previously been Disclosed to Counsel in Violation of a Discovery Order.
ASSIGNMENT OF ERROR NO. III
The Trial Court Erred in Allowing the Testimony of the witness Ariva Reddix Over Objection, Said Witnesses Name Not Having Been Previously Disclosed to Counsel in Violation of a Discovery Order.

These assignments raise this question: Is discovery, given by the State six (6) days prior to trial, sufficient notice to the defendant under Rule 4.06 of the Uniform Rules of Circuit Court Practice such that counsel may make beneficial use thereof? We hold that it is.

Rule 4.06 contemplates simultaneous discovery between the state and a defendant. The rule, in part, reads:

(a) The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:
(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
(2) Copy of any recorded statement of the defendants to any law enforcement officer;
(3) Copy of the criminal record of the defendant, if proposed to be used to impeach;
(4) Copy of crime lab reports or report or any tests made;
(5) Exhibit any physical evidence and photos to be offered in evidence; and
(6) Copy of any exculpatory material concerning defendant.
* * * * * *
*520 (g) Upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit his counsel to make beneficial use thereof.

This Court has held many times that discovery should occur prior to trial. Robinson v. State, 508 So.2d 1067 (Miss. 1987); Jones v. State, 481 So.2d 798 (Miss. 1985). We have consistently demonstrated our commitment to Rule 4.06. See Robinson v. State, 508 So.2d 1067 (Miss. 1987); Henry v. State, 484 So.2d 1012 (Miss. 1985); Barnes v. State, 471 So.2d 1218 (Miss. 1985); Harris v. State, 446 So.2d 585 (Miss. 1984); Ford v. State, 444 So.2d 841 (Miss. 1984); Box v. State, 437 So.2d 19 (Miss. 1983); Morris v. State, 436 So.2d 1381 (Miss. 1983). Unlike the challenges in the cases cited above, we are faced with the timeliness of disclosure prior to trial, not a failure to disclose prior to trial.

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