Foster v. State, 55650

Citation493 So.2d 1304
Decision Date10 September 1986
Docket NumberNo. 55650,55650
PartiesWebster Lee FOSTER v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Ralph M. Dean, Oxford, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and DAN M. LEE and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

Once again we are faced with an appeal involving a breach of Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice. This rule is becoming the problem child of our state jurisprudence. Such a development is puzzling. The rule's requirements are neither confusing nor onerous; yet we are continually confronted with cases in which law enforcement officials have failed to comply with it. It is irritating to have to reverse criminal convictions because of mistakes which could so easily be avoided, but cases like the present one leave us little choice.

At 9:00 a.m. on June 4, 1982, Elliott's Jewelry Store in Oxford opened for the day's business. Shortly thereafter, a lone black male wearing a brown polyester shirt and a fishing hat entered the store and asked to see some men's diamond rings. The sales clerk produced some for his inspection, whereupon he drew a pistol and said he would take the lot. After securing his loot, he fled the store on foot. Police were summoned immediately. Proceeding down what he considered the likeliest escape route, an officer discovered a brown polyester shirt and a fishing cap lying on the ground.

On the same day, the sales clerk prepared a composite sketch of the robber with the help of the Oxford police. This composite was widely circulated through northern Mississippi.

Two months after the robbery, the Oxford police received a report from the Highway Patrol that a man resembling the composite had entered a jewelry store in Batesville and fled after seeing the sales clerk consult the composite. The jeweler gave chase and was able to get the description of the man's car, as well as the tag number. The car turned out to be registered to "James Foster."

A few days later, an Oxford police officer was on the town square when he observed a man driving a car that answered the description from the Batesville incident. In his opinion, the driver closely resembled the composite sketch of the robber. Police stopped the car and told the driver, Webster Lee Foster, to drive to the station. He was not arrested, nor was he given the reason for his detention. When he arrived at the station, he was placed in a line-up wearing a fishing hat like the one seen on the robber. A citizen viewing this line-up identified Foster as the perpetrator of the robbery of an Oxford drug store. He was booked for this crime, and a routine search of his person revealed a pawnbroker's ticket for a man's diamond ring of the type taken during the jewelry store robbery, whereupon Foster was charged with that crime also.

The sales clerk did not see the line-up, being out of town at the time. However, when shown a photo of the lineup, she picked out Foster as the robber, and repeated this identification in court with great conviction.

After a jury trial, Foster was found guilty of armed robbery and sentenced to twenty years' imprisonment.

LAW

Foster assigns the line-up as error, in that it was impermissibly suggestive. It can hardly be denied that the Oxford police used very poor judgment in conducting it. The defendant was the only participant wearing the distinctive fishing hat referred to by the robbery victim. The explanation given was that the police did not have hats for the other participants, but in that case, Foster should have taken part without a hat.

Appellant contends that the sales clerk's in-court identification of Foster was tainted because she had been shown a picture of this line-up. Under our jurisprudence, however, the mere fact that a line- up was suggestive does not of itself compel such a result, unless under the totality of the circumstances, the impropriety gave rise to "a very substantial likelihood of irreparable misidentification." York v. State, 413 So.2d 1372, 1383 (Miss.1982). Having reviewed the circumstances of this robbery and the testimony of the sales clerk, we consider it highly unlikely that she could be mistaken in her identification of the robber. We therefore reject this assignment of error.

Foster also argues that the state violated Rule 4.06 by failing to disclose the existence of certain discoverable material to the defendant or the court.

This material came to light during the cross-examination of G.A. Liles, the police officer who responded to the call about the robbery and discovered the fishing hat and shirt. The pertinent section of the testimony is as follows:

Q. Officer Liles, you state the hat was marked by the crime lab. Would you please explain who the crime lab is.

A. Jackson Crime Lab, Mississippi Crime Lab in Jackson.

Q. What purpose was that hat so marked?

A. The hat was sent to the crime lab along with the shirt.

Q. For what purpose?

A. To try to determine if there was any hair in it.

Q. Do you have the results of those tests?

A. I have a letter back.

Q. Pardon me?

A. Yes sir.

Q. Could I see it?

A. I don't have it with me. I can tell you what it says.

Q. Please enlighten me.

A. All it says is there was negroid hair present.

Q. It didn't say Webster Lee Foster's hair, did it?

A. No, sir, they didn't say it was Webster Lee Foster's hair. They just--

Q. Isn't it a fact that you took a hair sample from Webster Lee Foster in the jail?

A. That's correct.

Q. What did you do with that hair sample?

A. Sent it to the crime lab.

Q. Did you get test results on it?

A. Yes, but there wasn't any way that they could tell.

Q. Pardon?

A. They couldn't match the hairs, the hair wasn't--

Q. Are you testifying, I want to know what the results were, what did they say?

A. I am trying to tell you, if you will let me.

Q. You said they couldn't match it.

A. I said all they could tell us was that the hair in the hat and the shirt was of a black male, just like the hair sample, known hair sample that we sent was from a black male and that was the extent of what they could tell us.

Q. They didn't say it was Webster Lee Foster's hair, did they?

A. They didn't say either one of them was Webster Lee Foster's hair.

Q. But you do put the name on a sample you send down there.

A. I had the name on the known sample, yes.

MR. DEAN: I would like to see the, if the court will indulge me a moment, I would like to see the results of this, this is the first I found out about this, too.

MR. COLEMAN: Your Honor, now Mr. Dean knows that the state didn't offer anything into evidence about this. He elicited this on cross examination. Therefore, the state had no responsibility to make him aware of anything. Mr. Liles has testified to everything the report says, that all such a test can reflect is the fact it was a male hair, black male, that's all the report says.

THE COURT: Just a minute. Mr. Dean, I have not a motion.

MR. DEAN: Defendant would ask this court to order the state's witness to produce the test results from Exhibit Nine and the test results on the hair sample taken from Webster Lee Foster.

THE COURT: Ladies and gentlemen, go to the jury room.

There followed a long discussion of whether or not the report could be considered exculpatory within the meaning of Rule 4.06, after which the court overruled the defense motion. Defense counsel dropped the issue and began cross examining Liles about another matter.

Rule 4.06 reads in part:

DISCOVERY: 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.

Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

Thus, it becomes apparent that the entire discussion of whether the material in the present case could be deemed exculpatory, is irrelevant, since the rule imposes an independent obligation under subsection 4 to disclose crime lab reports or any tests made, whether or not they are exculpatory. Fuselier v. State, 468 So.2d 45, 56 (Miss.1985).

It was therefore error for the trial court to overrule the defense motion in this matter. The question is, what was the effect of that error?

The state cites a number of cases for the proposition that reversal for discovery violations of this nature is proper only where prejudice is shown. With one exception, all of these cases antedate the adoption of Rule 4.06. The exception is Bracy v. State, 396 So.2d 632 (Miss.1981), in which portions of a report filed by a narcotics officer were withheld from the defense. The Court in that case refused to reverse because the portions of the report withheld "contain nothing ... that would have helped the defense or might have affected the outcome of the trial." (396 So.2d at 636). But Bracy differs from the present case in that the trial court and this Court reached that conclusion after examining the report. In the present case, the report was simply not seen by the trial court or this Court. The only testimony as to the content of the report was that given by Officer Liles. Obviously, it will not do for the state to withhold lab reports and then offer the unsupported testimony of its own witnesses as establishing their content.

In recent years this Court has produced a substantial body of...

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