Scott v. State

• Decision Date: 17 May 1978
• Docket Number: No. 50391,50391
• Citation: 359 So.2d 1355
• Parties: Frederick B. SCOTT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1355

359 So.2d 1355

Frederick B. SCOTT v. STATE of Mississippi.

No. 50391.

Supreme Court of Mississippi.

May 17, 1978.

Rehearing Denied July 12, 1978.

David R. Hunt, Joe C. Webster, Clarksdale, for appellant.

A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and SUGG and WALKER, JJ.

SUGG, Justice, for the Court:

The defendant, Frederick B. Scott, was convicted in the Circuit Court of Coahoma County for the rape of a female above the age of twelve years, and was sentenced to life imprisonment.

The twenty-three year old prosecutrix arrived at her office at approximately 7:30 a. m. on February 18, 1976. While working near her reception desk which was located approximately ten feet from the office door, she heard the door bell ring and saw a young black male enter. The man entered, pulled a stocking over his face, and approached the victim with a small chrome pistol. The office was well lighted and she could see the man plainly before he pulled the stocking over his face. The man rummaged through the victim's purse, forced the victim to a work room located behind the reception room, and raped her. Three days later she identified the defendant from a photographic lineup as the rapist, and defendant's conviction was based principally on the victim's identification.

The defendant first assigns as error the court's refusal to sustain his motion to require the state to disclose the identity of a confidential informer. On February 21, 1976, three days following the rape, a confidential informer told Assistant Chief of Police Jimmy Carsley of the Clarksdale Police Department that the person who committed the robbery at the McWilliams Building was a man named Freddie. The informant stated that the person named Freddie, whose last name was unknown to him, had no visible means of support, was residing in an attic in an old house in Clarksdale, and had been arrested during the preceding week by the Clarksdale Police Department on burglary charges. After receiving the confidential informant's tip, Carsley searched his files for photographs taken during the preceding week. Included in the photographs was one of the defendant. It was shown to the victim together with photographs of several young black males. After reviewing the additional photographs, the victim identified defendant as the rapist.

The defendant contends that, because the tip from the confidential informant set a chain of events in motion which ultimately led to his identification and arrest, the disclosure of the informer's identity was necessary for a proper defense.

We find no error in the court's refusal to require the disclosure of the identity of the confidential informant. We have consistently held that, where the informer is not an actual participant or eyewitness to the alleged crime and is not a material witness to the guilt or innocence of the accused, the disclosure of the identity of the informer is within the sound discretion of the trial court. Sims v. State, 313 So.2d 27 (Miss.1975); Ward v. State, 293 So.2d 419 (Miss.1974); McCormick v. State, 279 So.2d 596 (Miss.1973); and Young v. State, 245 So.2d 26 (Miss.1971). Carsley testified that the confidential informant was reliable and had furnished correct information in the past. The confidential informant was not present during the commission of the robbery and rape; therefore,the trial court properly refused to require the state to disclose the identity of the informer.

The defendant next contends that the lower court erred in refusing to direct the prosecutrix to confer with his attorneys so she could be examined by his attorneys in a private conference. Three weeks before trial, counsel for the defendant filed a motion to require the prosecutrix to confer fully in a separate and private conference with them. They argued that their cross-examination of the prosecutrix at the preliminary hearing conducted earlier was impeded by objections of the district attorney which were sustained by the presiding justice court judge. The trial judge took the matter under advisement to avail himself of the opportunity to read the transcript of the preliminary hearing. After reviewing the transcript, the trial judge concluded that only one objection was improperly sustained at the preliminary hearing, and ordered the prosecutrix to meet privately with counsel for the defendant at the Coahoma County Courthouse for not more than ten minutes in order to permit them to ask that one question. The defendant argues, on appeal, that the failure of the court to permit a lengthy and searching interview of the prosecutrix by his counsel denied him the necessary means for a proper preparation of a defense.

For a long time we have recognized the right of a party to confer with witnesses in preparation for trial. As early as 1876 in White v. State, 52 Miss. 216, we held that it is not within the power of a judge to deny counsel for a defendant "conversation with his witness generally." This case also recognized that some interviews with witnesses should be allowed only in the presence of the sheriff or some officer of the court, but held that the court should never refuse counsel for defendant an opportunity to converse with a witness which he had subpoenaed and proposed to call. In Shaw v. State, 79 Miss. 21, 30 So. 42 (1901) the rule in White was reaffirmed as a denial of the constitutional right of a defendant; however, the right of a trial court to impose reasonable limitations as to the length of time of a conference was recognized.

In a number of cases we have upheld reasonable limitations on the right to confer with witnesses. Davis v. State, 218 So.2d 17 (Miss.1969), cert. denied 395 U.S. 949, 89 S.Ct. 2032, 23 L.Ed.2d 469 (Miss.1969); Cannon v. State, 190 So.2d 848 (Miss.1966) (defense counsel was not permitted to interview prosecutrix and another witness except in the presence of an officer); Scott v. State, 218 Miss. 892, 56 So.2d 839 (1952) (time of conference limited by the court); Bruce v. State, 169 Miss. 355, 152 So. 490, suggestion of error overruled 169 Miss. 355, 153 So. 672 (1934) (time limitation imposed to avoid unreasonable delay of trial); Frazier v. State, 142 Miss. 456, 107 So. 674 (1926) (private conference with witness who was a convict denied because the witness was an escape risk); Mackie v. State, 138 Miss. 740, 103 So. 379 (1925) (defense counsel could not confer privately with witnesses who were children of tender years and who were afraid to confer privately except in the presence of another).

The essence of the right asserted by the defendant is that of access to prospective witnesses. A defendant's right to confer privately with witnesses should not be arbitrarily denied, provided the witness is willing to submit to questioning. The defendant's contention that the failure of the court to require a lengthy and searching examination of the prosecutrix denied him a fair trial is without merit because the record does not reflect either, that the prosecutrix was inaccessible for an interview before trial, or that she was willing to submit to an interview. The defendant had the opportunity to interrogate the prosecutrix at both the preliminary hearing and the suppression hearing. Hence, we are of the opinion that the trial court did not abuse its discretion by limiting the interview with the prosecutrix to ten minutes and one question.

In addition, the motion also presents the question of whether a trial judge may compel a witness to submit to an interview by counsel. This question has not been addressed by this Court, but other states hold that a trial judge may not compel a witness to submit to an interview unless the witness is willing to submit to the interview.

The rule in Massachusetts is that a witness may not be compelled to submit to an interview against his wish. In Commonwealth v. Carita, 356 Mass. 132, 249 N.E.2d 5 (1969) a witness was in custody and defense counsel desired to interview the witness. The Court outlined the procedure in such case as follows:

In practice, in such situations counsel for the defense should within an appropriate time file a motion to be allowed to interview the witness. The witness should thereafter be brought to court and instructed on his or her rights to consent or not to consent to an interview. A record should be kept of the proceedings. The answer of the witness will then determine whether an interview is to take place. If the answer is in the affirmative, a transcript of such interview may be taken in the discretion of the judge. See Commonwealth v. Doherty, 353 Mass. 197, 210-211, 229 N.E.2d 267. (356 Mass. at 142, 143, 249 N.E.2d at 11).

In Commonwealth v. Gibson, 357 Mass. 45, 255 N.E.2d 742, cert. denied 400 U.S. 837, 91 S.Ct. 75, 27 L.Ed.2d 70 (1970) information was solicited from two witnesses by defense counsel at which time the district attorney told them they did not have to talk with defense counsel unless they were willing. The Court stated:

We see nothing wrong here. The witnesses were not in protective custody (see Commonwealth v. Carita, 356 Mass. 132, 249 N.E.2d 5.) They were available for interview at other times and places subject to their willingness to be interviewed. Commonwealth v. McLaughlin, 352 Mass. 218, 224, 224 N.E.2d 444. (357 Mass. at 47, 255 N.E.2d at 743). (Emphasis Supplied).

In Commonwealth v. Pimental, 363 N.E.2d 1343 (Mass.1977) the appeals court of Massachusetts held that it was not error to deny defendant's motion that he or his counsel be permitted to interview witnesses who would be called by the prosecution. The court noted that there was nothing to suggest that the prosecution had presented any obstacle to the defendant's interviewing the witnesses and allowance of the motion might have resulted in depriving the witnesses of their rights to refuse to be interviewed.

The rule in Illinois is stated in People v....