Grady v. State, 47186
| Decision Date | 26 February 1973 |
| Docket Number | No. 47186,47186 |
| Citation | 274 So.2d 141 |
| Parties | Willie Earl GRADY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Gipson, Gipson & Williamson, Meridian, for appellant.
A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
Appellant was indicted, tried and convicted in the Circuit Court of Lauderdale County, Mississippi, for the delivery of marijuana and sentenced to four years in the State Penitentiary with the last three years suspended on the conditions set forth in Probation Form 3-B.
Appellant argues two assignments of error on appeal:
1. The trial court erred in allowing statements which had not been examined by counsel for Defendant-Appellant prior to trial, in direct violation of the trial court's ruling that counsel for Defendant-Appellant was to have such access to all statements prior to trial.
2. The trial court erred in permitting testimony as to the contents of an envelope allegedly containing drugs when the possession of the envelope and substance was not shown to be in continuous and proper legal custody.
Before trial the motion of appellant to compel disclosure of evidence by the State was sustained by the trial court. The order of the court specifically detailed the disclosure to be made to appellant by the State.
Pursuant to the order, appellant was given a copy of a written report typed by Howard Nester, a narcotics investigator for the Police Department of the City of Meridian, Mississippi, which was entitled, 'RESUME OF SPECIAL OFFICER EDDIE NEALEY IN THE WILLIE EARL GRADY CASE BY H. NESTER.' The report named John Paul Rhone as the person appellant obtained marijuana from at the request of Special Officer Eddie Nealey. The name John Paul was struck out and George Oliver was inserted above John Paul in ink. A copy of the report containing the change was not given to appellant before trial. The indictment shows that appellant was jointly indicted with George Oliver Rhone; that appellant had summoned John Paul Rhone as a witness; that George Oliver Rhone was in custody and appellant's attorney was given an opportunity to interview him during the trial. Several other discrepancies appear in the typewritten report when compared to the oral testimony of Eddie Nealey.
After it became apparent to the court that there was a variance between the typewritten report which had been furnished before the trial to appellant and his attorney and the testimony of the witness Nealey, the trial court, offered at two different times a continuance to appellant so that he could make an investigation necessary and 'meet head on' the testimony that was presented from the witness stand which was different from that contained in the typewritten report. Appellant, through his attorney, declined to accept the continuances and now complains that the trial court erred in permitting statements to be introduced in evidence which had not been examined by counsel for appellant before trial.
The written report furnished appellant materially differed from the testimony of the witness, Nealey, but when the court offered to continue the case to afford appellant the opportunity of making an investigation of the facts testified to, and upon appellant's election to proceed with the trial rather than accept the continuance and make an investigation, the court did all that it could to protect the rights of appellant. The court did not commit error in permitting the testimony of Nealey which varied from the written report. The full extent of the variance was fully developed before the jury.
The second assignment of error is directed toward the failure of the State to introduce every witness who handled the substance, identified as marijuana, by Dr. Albert Hume, State Chemist. After the substance was delivered to undercover agent Nealey, he and Nester initialed the cigarette paper in which the substance was wrapped, placed it in a plain envelope, sealed the envelope and initialed it. Nester then...
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...the trial court's ruling except where this discretion has been "so abused as to be prejudicial to the defendant." Id. In Grady v. State, 274 So.2d 141 (Miss.1973), this Court stated that the test is "whether or not there is any indication or reasonable inference of probable tampering with t......
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