Bracy v. State

• Decision Date: 08 April 1981
• Docket Number: No. 52312,52312
• Citation: 396 So.2d 632
• Parties: Brent BRACY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 632

396 So.2d 632

Brent BRACY v. STATE of Mississippi.

No. 52312.

Supreme Court of Mississippi.

April 8, 1981.

Russel D. Moore, III, Binder & Moore, Firnist J. Alexander, Jr., Jackson, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SUGG and WALKER, JJ

SUGG, Justice, for the Court:

Defendant was convicted in the Circuit Court of the First Judicial District of Hinds County for the sale of phencyclidine (PCP) and sentenced to serve a term of twenty (20) years and fined $10,000. Defendant assigns as error:

1. The court erred in refusing to permit counsel to examine the Narcotics Bureau report of Agent Steve Mallory.

2. The court abused its discretion in sentencing the defendant, aged 18 years, to 20 years and a fine of $10,000.

I

Steve Mallory, agent of the Mississippi Bureau of Narcotics, testified he purchased 5,000 phencyclidine (PCP) tablets from the defendant, William Allen Stewart and Michael Jones for the sum of $3,200, and that he made a written report pertaining to the sale. At trial defendant moved for a production of Mallory's written report to be used by his attorney in cross-examining Mallory. The trial court overruled the motion to produce the entire report but directed the state to furnish that part of the report which contained statements made by the defendant.

On appeal defendant argues that he was entitled to the entire report to be used in cross-examining the witness Mallory. He relies on Shell Oil Co. v. Pou, 204 So.2d 155 (Miss.1967) and Mississippi Highway Commission v. W. E. Howard, Jr., 253 Miss. 556, 176 So.2d 294 (1965). In Mississippi Highway Commission the trial court refused to make notes, which a witness had referred to during his direct examination, available to the opposite party for cross-examination of the witness. This Court held this was error and stated:

This ruling of the court was in error. In 58 Am.Jur. Witnesses § 601 (1948), it is stated:

The opposing party or counsel has the right, on proper demand, to inspect and use for purposes of cross-examination any paper or memorandum which is used by a witness while on the stand for the purpose of refreshing his memory upon the matters as to which he is testifying, and which in fact does tend to refresh his memory. The opposing party is accorded this right in order that he may ascertain whether the paper or memorandum used has any legitimate tendency to bring the fact in controversy to the mind of the witness, and in order that he may be in a position to cross-examine as to the testimony given and thereby test the candor and integrity of the witness... (253 Miss. at 562, 563, 176 So.2d at 296)

The Court also held that, ordinarily refusal to require a witness to submit notes used on direct examination would be reversible error, but such failure was harmless error under Mississippi Supreme Court Rule 11.

Mississippi Highway Commission and Shell Oil Co. have no application to this case because Mallory did not use his written report to refresh his memory while he was testifying on direct examination, therefore, this argument of defendant has no merit.

Defendant also contends that if the report contains any exculpatory evidence, the refusal to permit counsel for defendant to examine it was error. This contention requires us to examine Mallory's report to ascertain if the failure of the Court to require the state to furnish the entire report violates due process in accordance with the rule enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and amplified in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

L.Ed.2d 342 (1976). In Brady the Court stated:

The principle of Mooney v. Holohan, (294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791) is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts." A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not "the result of guile," to use the words of the Court of Appeals. (Brady v. Maryland ) 226 Md., (422) at 427, (174 A.2d 167.) (373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218, 219).

In Agurs, the Court stated:

We are not considering the scope of discovery authorized by the Federal Rules of Criminal Procedure, or the wisdom of amending those Rules to enlarge the defendant's discovery rights. We are dealing with the defendant's right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution. Our construction of that Clause will apply equally to the comparable Clause in the Fourteenth Amendment applicable to trials in state courts.

The problem arises in two principal contests. First, in advance of trial, and perhaps during the course of a trial as well, the prosecutor must decide what, if anything, he should voluntarily submit to defense counsel.

Second, after trial a judge may be required to decide whether a nondisclosure deprived the defendant of his right to due process. Logically the same standard must apply at both times. For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor's constitutional duty to disclose.

Nevertheless, there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge. Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicated accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure. But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.

. . . .

Whether or not procedural rules authorizing such broad discovery might be desirable, the Constitution surely does not demand that much. While expressing the opinion that representatives of the State may not "suppress substantial material evidence," former Chief Justice Traynor of the California Supreme Court has pointed out that "they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses." In re Imbler, 60 Cal.2d 554, 569, (35 Cal.Rptr. 293,) 387 P.2d 6, 14 (1963). And this Court recently noted that there is "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Cf. Giglio v. United States, 405 U.S. 150, 154, (92 S.Ct. 763, 766,) 31 L.Ed.2d 104. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.

on a case." Moore v. Illinois, 408 U.S. 786, 795, (92 S.Ct. 2562, 2568,) 33 L.Ed.2d 706. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.

. . . .

On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his "conviction is sure that the error did not influence the jury, or had but very slight effect." Kotteakos v. United States, 328 U.S. 750, 764, (66 S.Ct. 1239, 1247,) 90 L.Ed. 1557. Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record....