text:
    STATE of Louisiana v. Bill WILLIAMS, Jr. and Mary Ann Williams.
    No. CR83-901.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Dec. 7, 1984.

      Katherine S. Williamson, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Mark Kramar, Asst. Dist. Atty., Lees-ville, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   GUIDRY, Judge.

On March 21, 1983, the defendants, Bill Williams, Jr. and Mary Ann Williams, were charged by bills of information with:

1. Knowing and intentional possession of a controlled dangerous substance, to-wit: marijuana, in violation of La. R.S. 40:966(C);
2. Knowing and intentional possession of a controlled dangerous substance, (cocaine) with the intent to distribute, in violation of La.R.S. 40:967 (A);
3. Knowing and intentional possession of a controlled dangerous substance, (phenmetrazine) with the intent to distribute, a violation of La.R.S. 40:967 (A);
4. Knowing and intentional possession of a controlled dangerous substance, (pentazocine) with the intent to distribute, a violation of La.R.S. 40:967 (A).

The defendants filed a pretrial motion to suppress evidence and statements made by the defendants. The motion was argued and denied on May 3, 1983. Following a trial by jury, the defendants were found guilty on all charges.

The court ordered a pre-sentence investigation. Following receipt of the pre-sen-tence investigation report, the trial judge sentenced the defendants as follows.

On the convictions of possession of marijuana, both defendants were sentenced to pay a fine of $500.00 and to serve six months in the Vernon Parish Jail. Provided the fines were paid, the jail sentences were to run concurrent with the other sentences imposed. On the conviction of possession of cocaine with intent to distribute, Bill Williams, Jr. was sentenced to pay a $5,000.00 fine and to serve twenty years at hard labor. For her conviction of the same offense, Mary Ann Williams was sentenced to pay a fine of $5,000.00 and to serve a prison term of ten years. On the conviction of possession of phenmetrazine with intent to distribute, Bill Williams, Jr. was sentenced to a prison term of five years, to run consecutively to the other sentences imposed. For her conviction of the same offense, Mary Ann Williams received a prison sentence of five years, to run consecutively to the other sentences imposed. Finally, on the conviction of possession of pentazocine with intent to distribute, Bill Williams, Jr. received a prison sentence of seven years, without benefit of parole, probation, or suspension of sentence, to run concurrently to the other sentences imposed. For her conviction of the same offense, Mary Ann Williams received a prison sentence of five years, without benefit of parole, probation, or suspension of sentence, to be served concurrently with the other sentences imposed.

Defendants appeal their convictions and sentences urging ten assignments of error. However, as only four assignments have been briefed, the remaining six are considered abandoned and will therefore not be addressed.

FACTS

On December 16, 1982, authorities conducted a search of Mary Ann’s Supper Club located at 114 Havana Street in Leesville, Louisiana. The establishment was owned and operated by the defendants, Bill and Mary Williams. The search was conducted pursuant to a search warrant issued largely upon information supplied by a confidential informant and observations by police officers who had kept the Williams and their business establishment under observation for about two months.

A variety of controlled dangerous substances, as well as several items of alleged “drug paraphernalia”, along with large amounts of money were confiscated, mostly from a locked “bedroom” on the premises described above and from two purses allegedly belonging to defendant, Mary Ann Williams.

Both defendants made certain inculpato-ry statements at the time of the search. Following the search of the supper club, both defendants were arrested and each charged with the various narcotics offenses above mentioned. Both were convicted on all counts and sentenced as set forth previously. Both appeal their convictions and sentences, urging the following assignments of error.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendants contend that the trial court erred in denying their motion to suppress the evidence seized from the supper club. They assert that the affidavit in support of the search warrant failed to establish probable cause.

It is well established that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of a neutral magistrate. La. Const. Art. I, Sec. 5; La.C.Cr.P. Art. 162; State v. Klar, 400 So.2d 610 (La.1981); State v. Duncan, 420 So.2d 1105 (La.1982). The determination of probable cause is made on an analysis of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Lingle, 436 So.2d 456 (La.1983). In Gates, the United States Supreme Court abandoned the Aguilar and Spinelli “two-pronged test”, substituting in its place a “totality of the circumstances” analysis. Gates, 103 S.Ct. at 2332. The Louisiana Supreme Court has followed the Gates rationale. State v. Lingle, supra. The test, articulated by the United States Supreme Court in Gates is as follows:

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 103 S.Ct. at 2332.

The defendants admit that the affidavit supports the credibility of the confidential informant but argue that there is insufficient information in the affidavit to establish the reliability of the informant’s information. The defendants further assert that as there is no indication in the affidavit as to the amount of drugs observed by the informant, there was no reason to believe that the quantity he observed would remain on the premises at the time of the search.

The confidential informant gave information on December 16, 1982, based on observations made as late as December 15, 1982. While it is true that the affidavit does not specify the amount of drugs on the premises, the informant’s information, taken as a whole, tends to show that there was an ongoing distribution of drugs from this establishment and that he had viewed an amount of drugs and enough drug paraphernalia to indicate same. The confidential informant had personally observed marijuana and cocaine at the supper club. He knew that most of the controlled dangerous substances were stored in a locked room behind the bar. The informant even knew that the defendant had some of the cocaine hidden in a Bible in that locked bedroom. The informant also told authorities that he personally knew the defendant to be actively engaged in the sale of controlled dangerous substances.

The defendants admit that the confidential informant was shown to be reliable but assert that the affidavit fails to establish the reliability of the information contained therein. In Illinois v. Gates, supra, the United States Supreme Court made it clear that:

“... an informant’s ‘veracity’, ‘reliability’, and ‘basis of knowledge’, are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case — Rather, they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Gates, 103 S.Ct. at pgs. 2327-2328.

It appears from the informant’s statements that the issuing magistrate had sufficient information from which to make a “commonsense” and practical minded conclusion that there existed probable cause to believe that controlled dangerous substances would be found on the premises described. As the court in Gates pointed out, “in dealing with probable cause, we deal with probabilities.” Gates, 103 S.Ct. at 2328.

“These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Gates, 103 S.Ct. at 2328.

The defendants also argue that because the premises was a restaurant, and there were no allegations in the affidavit which would connect the contraband to the defendants, there was no reason to assume that the contraband was under their control. The affidavit clearly belies this assertion. The affidavit sets out that the drugs were observed in a locked room, generally under the control of the defendant owners. The confidential informant told officers he had personally observed Mr. Williams sell marijuana and cocaine from this establishment at 114 Havana Street. Moreover, the officer had received information from several other informants that Mr. Williams was dealing in drugs. Thus, the affidavit is replete with information connecting Mr. and Mrs. Williams to the contraband on the premises.

We conclude that the affidavit clearly established probable cause that controlled dangerous substances and drug paraphernalia, indicative of an ongoing distribution of drugs, would be found at the named premises. For the reasons stated above, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment, the defendants argue that the trial court erred in admitting into evidence, over defense objection, a statement made by defendant to the arresting officer. The defendant asserts that State Exhibit Eleven includes an inculpato-ry statement made by defendant which should have been furnished to the defense during pretrial discovery. The defendant maintains that the failure to notify him that said inculpatory statement would be offered into evidence prejudiced his defense.

The statement alleged to be inculpa-tory is that in which Bill Williams gave the arresting officer his residence addresses as 531 Charleyvoy, Houston, Texas, and 114 Havana Street, Leesville, Louisiana. The Havana Street address is the address of the supper club owned by defendants. Defendants argue that because the State was required to prove knowing possession of controlled dangerous substances, the issue of whether defendants actually resided at the supper club was of extreme importance. The Louisiana Code of Criminal Procedure, Article 716(C) provides:

“Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.”

Clearly, the discovery rules in Article 716 and following are “intended to eliminate unwarranted prejudice which could arise from surprise testimony”. State v. Toomer, 395 So.2d 1320 (La.1981) and State v. White, 430 So.2d 171 (La.App. 2d Cir.1983), writ denied, 433 So.2d 1055 (La.1983).

First, it does not appear that the State intended to offer this statement into evidence nor does it appear that, prior to the defense’s argument, this statement was even thought to be inculpatory. The arresting officer merely asked routine information of the defendant. The defendant’s response was not seen as any sort of incul-patory statement. Nowhere in the course of the proceedings does it appear that the State had any intention of using this remark to in any way prove its case against the defendants. Moreover, it is questionable as to whether this was “surprise testimony” which resulted in prejudice toward the defendant. The State did not introduce this testimony to prove its case but only introduced the remark to rebut defense’s argument that defendants did not reside at the supper club as a means of proving that the controlled dangerous substances were not under their control or knowingly possessed by defendants. It was hardly a “surprise” to find that the defendants had given this address as one of their residence addresses on the arrest report. Until this point in the proceedings, it was not logical for the State to view this “remark” as inculpatory.

The State’s response and amended response to defendants’ discovery motion appears to indicate that the State had disclosed every bit of inculpatory remarks made by defendants which the State intended to introduce at trial. No notice was given regarding this statement because apparently the State did not view this routine information as inculpatory and had no intention to introduce the remark to prove anything.

As the prosecutor pointed out at trial: “... the offering is made in response to defense counsel’s questioning along those lines as to whether or not Mr. Williams ever told him that he resided in Houston, Texas or what address was given. Defense counsel’s opened the door for this offering and it was not anticipated prior to trial.”

The trial court overruled the objection stating that:

“The only thing that it shows is a couple of addresses which is commensurate with the cross-examination, as a matter of fact, the very leading question.”

The admissibility of the evidence in question is left largely to the discretion of the trial judge. State v. White, supra. There appears to be no abuse of that discretion herein as the address did not logically appear to be an inculpatory remark nor does it appear that the State intended to introduce the remark to prove its case.

For the reasons as stated, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 9

Through this assignment, defendants argue that there was not sufficient evidence introduced to sustain the convictions returned by the jury on the four offenses with which defendants were charged.

. The State offered both direct and circumstantial evidence to prove the charges brought against defendants. Where there is both direct and circumstantial evidence, the test of sufficiency of the evidence is clear.

“The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

See also State v. Washington, 421 So.2d 887 (La.1982); State v. Moore, 432 So.2d 209 (La.1983).

The defendants were charged with knowingly and intentionally possessing marijuana, a violation of La.R.S. 40:966 (C & D); and knowingly and intentionally possessing, with intent to distribute, cocaine, phen-metrazine, and pentazocine, each violations of La.R.S. 40:967(A). Thus, the State was required to prove that defendant’s knowingly and intentionally possessed a substance as alleged in the bills of information, and, that at the time of the possession, defendants had a specific intent to distribute such substances. The evidence introduced at trial appears to have been sufficient enough for the jury to conclude that defendants were guilty as charged. The State proved through expert testimony that the substances seized from the supper club were what they were alleged to be in the bills of information. The State also introduced items referred to as drug paraphernalia such as a set of scales and a larger number of small plastic bags. The State introduced testimony to show that the scales and bags, although they have other uses, were commonly used in illegal drug operations. Defendants had told officers they used these in their business but could offer no explanation of how these items were used by defendants or their employees. The State also introduced into evidence large sums of money found in the locked bedroom where most of the confiscated drugs were found. In addition, the State introduced into evidence ledgers or records of what strongly appears to have been records of drug sales. Defendant, Mary Ann Williams, even admitted to the charge of possessing marijuana.

The defendants assert that they were not residing at the supper club and that anyone had access to the bedroom where the drugs and money were found. But the evidence showed that there was a great deal of clothing belonging to the defendants in that bedroom. In addition, the room was kept padlocked, although defense witnesses testified that the key was kept in the cash register. The cocaine seized by the officers was found in the hem of a curtain in the bedroom. The jury could reasonably infer from the evidence set forth above that the drugs were under defendants’ control, that defendants knowingly possessed the controlled dangerous substances as listed in the bills of information, and that the defendants were engaged in the ongoing distribution of a variety of controlled dangerous substances.

The defendants also argue that the amount of drugs recovered were not consistent with distribution but with personal consumption only. Alternatively, the defendants argue that the State failed to prove the requisite intent to distribute. Though an expert witness did testify that the amount of most of the drugs recovered was small, he did testify that the amount of phenmetrazine recovered was indicative of distribution. Be that as it may, the jury could consider the amounts of money found in the bedroom; the large sums listed in the ledgers indicative of drug sales rather than the fictitious sales named therein; the drug paraphernalia confiscated; along with the controlled dangerous substances; and conclude that the necessary intent to distribute was proven beyond a reasonable doubt.

“Intent to distribute may be inferred from the circumstances. LSA-R.S. 15:445.” State v. Greenway, 422 So.2d 1146 at 1148 (La.1982).

The defendant is correct in arguing that mere possession is not evidence of intent to distribute, unless of course, the amount is so large that no other inference would be reasonable. Greenway, supra. However, there was enough other evidence in this case upon which the jury could base its verdict of guilty. Greenway, and the other cases cited by defendant in brief,

“... merely stand for the proposition that having possession of a small quantity of a dangerous controlled substance, standing alone, will not support an inference that the substance was intended for distribution.” State v. Ramoin, 410 So.2d 1010 (La.1982).
“Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute.” State v. Elzie, 343 So2d 712 (La.1977). Ramoin, on rehearing, at 1013.

Thus, it appears that there was enough evidence introduced, in spite of the small quantities of controlled dangerous substances recovered, for the jury to reasonably conclude that the defendants were engaged in the distribution of the controlled dangerous substances as listed in the bills of information.

For the reasons stated above, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 10

Finally, the defendants contend that the sentences imposed are constitutionally excessive, in violation of Art. 1, Section 20 of the Louisiana Constitution.

The imposition of a sentence, even one within statutory limits, may violate the Constitutional protection against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Campbell, 404 So.2d 1205 (La.1981). A sentence is excessive if it is so grossly disproportionate to the severity of the crime that it shocks the court’s sense of justice, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). However, the trial judge is afforded wide discretion in the imposition of sentences within statutory limits, and the sentence imposed will not be set aside absent a manifest abuse of discretion. State v. Lanclos, 419 So.2d 475 (La.1982).

The defendant, Bill Williams, Jr., was sentenced to pay a fine of $500.00 and serve a jail term of six months on the conviction of possession of marijuana. Although this is the maximum sentence authorized by La.R.S. 40:966 (D), the trial judge ordered that, upon payment of the fine, the prison term was to be served concurrently with the other sentences imposed. On the conviction of possession of cocaine with intent to distribute, he was sentenced to pay a $5,000.00 fine and serve a prison term of twenty years. The statutory penalty for this offense is a fine of up to $15,000.00 and a prison term not less than five years nor greater than thirty years. La.R.S. 40:967 (B)(1). On the conviction of possession of phenmetrazine with intent to distribute, Williams was sentenced to five years, to be served consecutively to the other sentences imposed. The penalty authorized for this offense is a fine of up to $15,000.00 and a prison term not to exceed ten years. La.R.S. 40:967 (B)(3). Finally, on the conviction of possession of pentazocine with intent to distribute, Williams received a sentence of seven years without parole, probation, or suspension of sentence. The penalty for this offense is a fine of up to $15,000.00 and a prison term not less than four nor greater than ten years. The statute further requires that the prison term be served without benefit of probation, parole, or suspension of sentence. La.R.S. 40:967 (B)(2).

We find none of the sentences imposed on Bill Williams, Jr. to be excessive. The trial court, in imposing the sentences, took note of Williams’ long history of criminal activity. Williams’ criminal record, made part of the record herein, shows arrests for, among others, theft, aggravated assault, gambling, unlawful flight to avoid prosecution, forgery, illegal carrying of weapons, possession of heroin, and distribution of phenmetrazine. The trial judge also recognized that prior attempts at rehabilitation through probationary treatment have failed.

In light of Williams’ criminal history, and his failure to reform during over thirty years of criminal activity, we find no abuse of discretion in the sentences imposed by the trial court. State v. Landos, supra.

We next consider the sentences imposed upon Mary Ann Williams. She, like her co-defendant, received a sentence of six months in the parish jail and a $500.00 fine on the conviction of possession of marijuana. As was the case with the sentence imposed on her husband, the trial court ordered that, upon payment of the fine, the jail sentence would run concurrently with the other sentences imposed. On the conviction of possession of cocaine with intent to distribute, she was sentenced to pay a $5,000.00 fine and to serve a prison sentence of ten years. Both penalties represent one-third of the maximum allowed by statute. La.R.S. 40:967 (B)(1). On the conviction of possession of phenmetrazine with intent to distribute, she received a prison sentence of five years, or one-half of the maximum prison sentence authorized by La.R.S. 40:967 (B)(3). Finally, on the conviction of possession of pentazocine with intent to distribute, she received a five year prison sentence without benefit of parole, probation or suspension of sentence to run concurrently with the other sentences imposed. This sentence represents one-half of the maximum prison sentence authorized by La.R.S. 40:967 (B)(2), and one year greater than the minimum prison sentence authorized by the statute.

While Mary Ann Williams’ criminal record is not as long or as varied as that of her husband, the record does show that she was convicted in the U.S. District Court, Western District of Louisiana, for forcible robbery on a military reservation. She was given a five year suspended prison sentence and five years of supervised probation.

We find none of the sentences imposed upon Mary Ann Williams to be excessive. The prison sentences she received for the three felony convictions all fall within the low to middle range of sentences authorized by statute. The multiple nature of the offenses indicates that the defendant was involved in an ongoing drug distribution business involving a variety of illicit drugs. In light of the seriousness of the offenses, we find no abuse of the trial court’s discretion in the sentences imposed upon Mary Ann Williams.

For the reasons assigned, the convictions and sentences imposed upon the defendants are affirmed.

AFFIRMED.

      .Assignments of error not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Crawford, 441 So.2d 813 (La.App. 3rd Cir.1983).

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

      . Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).


source: Caselaw Access Project

author: HAWKINS, Justice, for the Court: ROY NOBLE LEE,

license: Public Domain

text:
    In re Willie Albert SMITH.
    No. 53564.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Robert J. Brantley, Kirksey, Brantley & DeLaughter, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   HAWKINS, Justice, for the Court:

Before us is the second petition for writ of error coram nobis of Willie Albert .Smith. It assigns a new and distinct ground for post-conviction' relief, namely: that two eyewitnesses committed perjury when they made in-court identification of Smith as the person who abducted the vic-rim later found murdered. Attached to this petition are the affidavits of these witnesses, Kenneth Thomas and James E. Wells, that they did indeed lie when they identified Smith as the person seen struggling with the victim. If their affidavits are true, they have both committed perjury under Miss. Code Ann. § 97-9-59, and subjected themselves to a sentence of at least ten years in the state penitentiary under Miss.Code Ann. § 97-9-61.

These witnesses’ identification of Smith at trial formed an integral part of our opinion affirming his conviction.

In his original appeal Smith filed a Supplemental Assignment of Error that the in-court identification was invalid, which we rejected. Page 574. Smith renewed this contention in his first petition for writ of error coram nobis. We again rejected this contention as having been previously considered without merit on direct appeal, 434 So.2d page 216.

In York v. State, 413 So.2d 1372 (Miss.1982), we set out the current holdings of the United States Supreme Court and this court concerning the problems relating to witnesses’ identification of the accused. It is pertinent now to make more detailed observations about the trial record in this case, because we find from this record that the in-court identification of Smith by these witnesses was perilously close to violating even the lenient guidelines of York.

On March 15, 1981, between 4:30 and 5 o’clock in the morning, James E. Wells went to Kenneth Thomas’s house in Jackson to request Thomas to go with him to get a check cashed. It was a Sunday morning, and shortly after 5:00 (between dark and sunrise), as Wells drove by a Tote-Sum Store on Robinson Road in the City of Jackson, Thomas noticed a Black man struggling with a White woman in the parking lot. Thomas tried to get Wells to stop, but Wells was reluctant to get involved, and drove on.

After Wells and Thomas had driven by, Sgt. George E. Otis of the Jackson Police Department stopped at the store to use the telephone. While he was there, Wells and Thomas returned around 5:30 o’clock, and reported to him what they had seen. Thomas did most of the talking.

The black man struggling with the woman was described as having a “medium Afro, medium dark complexion, rather short stature.” Page 132.

The description of the vehicle was more detailed and specific. It was described as a red Pinto, approximately 1970 model, with a cracked or broken grill, some material resembling carpeting on the dashboard, and a decal of some type on the rear. Within an hour Smith was arrested driving a Pinto car of this description.

Either one or two days after March 15, 1981, Thomas was called to the Jackson Police Station to identify Smith in a line-up as the man he saw struggling with the white woman on the store parking lot. He failed to point Smith out in the line-up, telling the officers he was unable to identify such person. Prior to trial Thomas was asked by representatives of the defendant if he could identify the man in the parking lot, and he said he could not.

There was a pre-trial suppression hearing on the 7th day of July, 1981, with Smith present. Thomas saw Smith at this suppression hearing.

Trial began on July 27, 1981. The day before Thomas took the stand as a witness, he was shown five photographs of Black males, one of which was of Smith. Thomas picked Smith’s photo. The next day when Thomas took the stand as a witness, he made an in-court identification of Smith.

Wells testified it was dark when he drove past the Tote-Sum Store, but not so dark that he could not see. After returning to the Tote-Sum Store and reporting what they had observed to Otis, Wells and Thomas gave the officer their addresses and left.

Wells never attended a line-up. He, too, was shown five photographs the day before he testified and Smith’s photo.

He identified Smith in person for the first time in the courtroom when he testified. On cross-examination he admitted having been told there would be “a little Black man sitting in the courtroom.” He admitted to talking to the police two days after the crime and telling them he could not identify the man in the parking lot, also telling Thomas the same, and later telling representatives of Smith he could not identify such man.

We thus have the rather unusual circumstance of two identification witnesses positively informing police officers within two days after the crime that they are unable to identify the culprit, and no further questioning of them by the police until trial four months later. Then, the day before they are to testify each is shown five photographs, one of which was of Smith. In the meantime, Thomas has seen Smith at a pre-trial hearing.

Unfortunately, at the trial defense counsel made no effort to exclude these in-court identifications as violative of Smith’s constitutional right. It is idle to speculate what the circuit judge’s ruling might have been had an in-depth hearing on this matter been conducted in chambers. Rather, it is apparent from the record that defense counsel chose to exploit this tenuous identification testimony before the jury in an effort to discredit him. Counsel conducted a vigorous cross-examination. All of their prior inconsistent statements were displayed to the jury.

We do not criticize this trial strategy of a manifestly able trial lawyer, but point it out as one of the reasons we did not give greater consideration to the assignment of error that Smith’s constitutional rights had been violated by the in-court identification.

Now, we are faced with a petition for writ of error coram nobis with affidavits from Thomas and Wells that they lied when they testified they were able to identify Smith at the trial. Their affidavits are as follows:

My name is Kenneth Thomas....
I testified at a trial in Jackson, Miss, in July 1981, about facts concerning Willie Albert Smith. My testimony at that trial was untrue. I would like to state the following information as absolute fact.
(1) At trial, I identified Willie Albert Smith, the defendant in the courtroom, as a black man I saw struggling with a white woman in a parking lot in front of the Tote-Sum Store on Robinson Road about 5:15 a.m. on March 15, 1981. That testimony was completely untrue.
(2) On March 15, 1981 at about 5:00 a.m. I was a passenger in a car being driven by James Wells. We drove by the Tote-Sum Store on Robinson Road. I saw a black man and a white woman struggling. A red Pinto was in the parking lot.
(3) I did not see the face of the black man in the parking lot that morning. There is no way that I could possibly identify him.
(5) After that day, I was taken by a police investigator to the district attorney’s office. I was pressured to give a statement. I was told that if I did not give them a statement, I would be thrown in jail. They told me my probation would be revoked and I would go back to Parchman for 22 years. Out of fear, I agreed to sign a statement, without concern for whether that statement was true.
(6) Some time after March 15, a police investigator took me to the district attorney’s office. Ed Peters gave me a stack of five photos. He told me to pick out the picture of the man I saw at the Tote-Sum Store. I told Peters that I could not identify the man. Peters insisted that I select one of the pictures as the man I saw at the Tote-Sum anyway. I looked at the pictures. I gave Peters the picture of Willie Albert Smith. I could not recognize Smith but that picture had the name “Willie Albert Smith” written on the back. I knew that this was the picture of the man Peters wanted me to identify. I knew that the man they had arrested for the crime was named Willie Albert Smith. Although I gave Peters that picture, I told him I could not identify the man in that picture as the man in the Tote-Sum parking lot.
(8) At trial I testified that I could identify Willie Albert Smith as the man in the Tote-Sum parking lot. I testified that I had identified his picture as the man in the Tote-Sum Store parking lot. I testified that I had identified Smith in the line-up as the man in the Tote-Sum Store parking lot. None of this testimony was true. I have no idea who the man was in the Tote-Sum Store parking lot. I never saw his face and it is not possible for me to identify the man I saw. I gave this false and untrue testimony because I was threatened by Ed Peters and the police investigator....
(9) I am giving this affidavit of my own free will. I have not had any peace of mind since I gave this untrue testimony at the trial of Willie Albert Smith. I want to tell the truth now so I can live with myself. I want Willie Albert Smith and his family to know that I am genuinely sorry for what I did. I have not been pressured or threatened to give this statement.
S/Kenneth Thomas
My name is James Earl Wells.... I testified at a trial in Jackson, Miss, in July, 1981, about facts concerning Willie Albert Smith. My entire testimony was not true, and I would like to state the following information as absolute fact:
(1) At trial, I identified Willie Albert Smith, the defendant in the courtroom, as a black man I saw struggling with a white woman in a parking lot in front of the Tote-Sum Store in Robinson Rd. about 5:15 a.m. on March 15, 1981. That testimony was completely untrue.
(2) On March 15, 1981, at approximately 5:00 a.m., I was driving my car, headed east on Robinson Road in Jackson. Kenneth Thomas was in the passenger seat. I drove past the Tote-Sum Store on Robinson Road. It was dark. I did not see anything happening in the Tote-Sum Store parking lot. I did not see a black man struggling with a white woman.
(3) Some time during the next week, I was taken by a Jackson police officer to the Police Station. I told them that I did not see anything at the Tote-Sum Store on March 15. The police said I was laying — that I did see a black man struggling with a white woman, and that I did see the woman being forced into a small red car. I told the police I did not see that, or anything else.
(4) The police threatened to put me in jail for withholding valuable evidence if I did not give a statement. A police officer said to “lock his butt up” until the trial, months later. I was afraid of what would happen to me, so I agreed to give a statement to the police, although it was not true.
(5) Just before the trial of Willie Albert Smith for murder, I received a subpoena. I went to the office of Ed Peters, the District Attorney. I told Peters that I could not identify the man at the Tote-Sum Store on March 15, 1981. He handed me a stack of photos and told me to look at them, and tell him which one was the black man I saw at the Tote-Sum Store. He left me alone with the photos.
(6) I turned the photos over. Each had a name on the back. One had the name “Willie Albert Smith” on the back. I picked that photo, because I knew that was the name of the man on trial. I had never seen the man in the photo before. I gave that photo to Peters when he came back to the room. I told Peters that I could not identify the man, but I gave Peters the photo with Smith’s name on the back.
(7) I testified at the trial of Willie Albert Smith the next day. I identified Smith, the defendant in the courtroom, as the man who had been struggling with a white woman in the Tote-Sum parking lot on March 15, 1981. In fact, I had never seen Smith before and had no basis for that testimony; it was false and untrue. I gave that testimony only because I was pressured by the police and the District Attorney; I was afraid of what would happen to me if I refused.
(8) I give this sworn statement freely and of my own will. I have not been pressured, or threatened to give this statement.
S/James E. Wells

As in the recent case of Sanders v. State, 439 So.2d 1271, page 1276 (Miss.1983), when we were faced with a quite similar situation, we are again “forced to conclude that in the event” the affidavits are “accurate and truthful, this would be sufficient for the lower court to hear the petition for writ of error coram nobis.”

We pass no judgment on the merits of this application, going no further than authorizing and granting leave to file.

The State first contends the petitioner failed to use due diligence either prior to or during trial. We cannot agree with this contention. These witnesses were interviewed by representatives of the defense prior to trial and both stated they could not identify Smith. The first time the defense was apprised otherwise was when each witness took the stand. Indeed, according to the trial record, it was only the day prior to their testifying as witnesses that either informed the State he could identify Smith. The defense counsel cannot be faulted for not discovering this about-face prior to their taking the stand.

The State next takes Smith and his counsel to task for not learning, following the trial, from Thomas and Wells that they had committed perjury before November, 1983. That is hardly relevant to the inquiry of whether the petition should be sustained.

The State next claims there was no knowledge on the part of the State the testimony was false, and attaches affidavits of various law enforcement officers who interviewed Thomas and Wells at one time or another.

We cannot pass judgment on any of these issues simply upon the petition filed. Yet, even if we gave complete credence to every statement made in each affidavit supporting the State’s brief, this still does not dispense with the central allegation of the petition, namely: Thomas and Wells committed perjury when they testified in court they could identify Smith as the man assaulting the woman on the parking lot at the Tote-Sum Store. To this Smith has attached the unequivocal affidavits of these witnesses.

We cannot escape the conclusion that Smith is entitled to a hearing on his petition. We further believe this matter can be conducted best in a state court proceeding, rather than a federal court.

We pass no judgment on the merits of the petition.

SUSTAINED.

PATTERSON, C.J., and BOWLING, DAN M. LEE and ROBERTSON, JJ., concur.

ROY NOBLE LEE and WALKER, P.JJ., and PRATHER and SULLIVAN, dissent.

ROY NOBLE LEE,

Presiding Justice, dissenting:

I think that the pending Application for Leave to File Petition for Writ of Error Coram Nobis should be denied and, therefore, I dissent from the majority opinion.

Willie Albert Smith was convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, and sentenced to suffer death, according to the laws of the State of Mississippi.

Shirley Roberts, the murder victim, was the manager of Tote-Sum Store No. 6 situated on Robinson Street in the City of Jackson. She customarily opened the store around 5:15 a.m. On the morning of March 15, 1981, upon her arrival at the store, she was assaulted, kidnapped and subsequently murdered.

Kenneth Thomas and James Wells passed the Tote-Sum store shortly after 5 a.m. in a car driven by Wells. They saw a black man in the parking lot grab a white woman who struggled with him, and saw the black man choke her. Wells did not want to become involved and they drove on. They observed a red Pinto automobile in the parking lot. The black male was forcing the woman into the car.

A short time later, Thomas and Wells returned to the parking lot and saw Jackson Police Department Officer G.E. Oatis at the scene. They made inquiry of Oatis concerning the assault and learned that Oatis had no knowledge of it.

Thereupon, they reported what they had seen and Oatis conducted a search over the parking area where he found items of personal effects, including car keys, glasses, and a woman’s shoe. Oatis required Thomas and Wells to stay at the parking lot until other officers were summoned to assist in the investigation of the matter. He obtained from the men a description of the black man, though somewhat scanty, and a description of the Pinto automobile. Later in the morning, Officer Oatis saw a red Pinto automobile traveling on Robinson Road, which fit the description of the suspect’s car given him by Thomas and Wells. He stopped the car, which was driven by the petitioner Willie Albert Smith. At that time, he saw Smith put something under the right side of the front seat. The object was a shoe, and was the mate to the worn-an’s shoe found by him in the parking lot. Officer Oatis observed mud and blood on Smith’s hands, and, thereupon, arrested him.

The investigation then led to Smith’s home, and it was determined that Mrs. Roberts had been raped and murdered. A “drag trail” was followed from the Smith house to a wooded area where the officers came to a water ditch covered with leaves from which a human foot protruded. The body in the water was identified as that of Mrs. Shirley Roberts.

Petitioner Smith appealed his conviction to the Mississippi Supreme Court which affirmed the lower court on August 11, 1982, [Smith v. State, 419 So.2d 563 (Miss.1982)]. A petition for rehearing was denied September 22, 1982. Smith filed a petition for writ of certiorari in the United States Supreme Court, and it was denied March 21, 1983, [Smith v. Mississippi, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983) ].

Petitioner Smith applied to this Court for leave to file a petition for writ .of error coram nobis, and that application was denied by the Court on June 1,1983 [Smith v. State, 434 So.2d 212 (Miss.1983)]. Petition for rehearing was denied July 27, 1983. On August 1, 1983, petitioner Smith filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Mississippi, Civil Action No. JH3-0573(B).

The pending application for leave to file petition for writ of error coram nobis states the following grounds:

I. The State knowingly used the perjured testimony of James Wells and Kenneth Thomas to obtain a conviction of the petitioner Smith. Sworn statements of Wells and Thomas are attached to the application wherein each set forth that he perjured himself in identifying Smith as the black person struggling with the victim in the parking lot.
II. Officer Oatis did not have probable cause to stop the automobile of Smith and subsequently arrest him, and the evidence obtained from the automobile was inadmissible.

I.

Prior to the trial of the case, Thomas and Wells had given some description of the petitioner Smith to the officers, but they had not identified him as being Mrs. Roberts’ abductor. At the trial, an in-court identification was made by those witnesses. The position of the defense at trial was that Thomas and Wells were not telling the truth and that they were perjuring themselves. A strenuous cross-examination was permitted by the court and made by the defense attorney, following that point. The same question is involved here, although somewhat extended, and it was raised by petitioner Smith in his first application for leave to file petition for writ of error coram nobis on April 27, 1983. Excerpts from that application follow:

Part Two: Constitutional Claims Relating to the Guilt Trial
D. The Admission of Impermissibly Tainted In-Court Identification
39. The admission of two impermissi-bly tainted in-court identifications of the petitioner irreparably prejudiced his case in violation of the sixth, eighth and fourteenth amendments.
Facts supporting petitioner’s claim that the admission of the in-court identifications violated the fifth, sixth, eighth and fourteenth amendments
40. At petitioner’s trial, the prosecutor put on two eyewitnesses, Kenneth Thomas and James Wells, who made in-court identifications of the petitioner as the man they saw struggling with the victim in the Tote-Sum parking lot the morning of May 15, 1981. The in-court identifications of both of these witnesses were made, despite an inadequate opportunity to observe the suspect in the parking lot, as a result of impermissibly suggestive procedures in violation of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
41. Thomas’ and Wells’ entire view of the parking lot altercation was from a moving car and was only 10 to 15 seconds in duration. Tr. 410. When they reported the crime twenty-five minutes later, they provided the officer with only the vaguest description of the suspect: male black, medium Afro, medium complexion, short stature. Suppression Hearing (S.H.) 68, 91. “They went on to describe mostly his vehicle ...,” S.H. 68, which they described in great detail. See S.H. 68-69, 155.
44. The state conducted a lineup for the purpose of obtaining eyewitness identification of petitioner. It brought Thomas to the lineup; it did not bring Wells. Thomas, however was not able to identify petitioner. Tr. 366, 401. Subsequently, both he and Wells were visited by members of petitioner’s family. Both witnesses reported at that time that they could not identify the man they saw in the parking lot. Tr. 366, 400, 421, 424. In addition, Wells had told the police just two days after the incident that he could not identify the man in the parking lot. Tr. 432. Nor could he the morning after the incident. Tr. 437.
46. Thomas was subpoenaed and came to court on the first day of trial. At that time, he was confronted by the prosecutor and a police lieutenant in the prosecutor’s office. He was handed five photographs and asked to pick out the man he saw in the parking lot. He did so, not because of a desire to give truthful testimony, but to avoid serving an additional twenty-two years.
Q All right, Mr. Thomas, you were just being a good citizen when you came down here yesterday and talked to the District Attorney and his Assistants, ... when you suddenly decided to identify this defendant. You were being a good citizen yesterday, weren’t you?
A No, sir.
Q You weren’t?
A No, sir.
Q As a matter of fact—
A (Interposing) I was under subpoena. That’s what I -had to do or I would be facing twenty-two years, you know.
Q All right. And this happened in the District Attorney’s office.
A Yes, sir.
Q The District Attorney was there?
A Yes, sir....
TR 365. Indeed, this was made explicit in his conversation with the prosecutor and the police officer.
A ... They told me if I came in here lying I would be doing it a whole lot longer.
Q Okay.
A After I get through with my twenty-two years, you know.
Q They told you if you were lying — if you were lying about anything in this trial.
A I am going to jail, right.
Q You are going to jail.
A Right.
Tr. 399. And, lest Thomas forget, the prosecutor was sure to remind him on the stand as he recounted his identification of petitioner in the photo show-up. Tr. 356.
Q Are you on probation today?
A Yes, sir.
Q Are you aware of what could happen, if you lie under oath?
A Yes, sir.
Q Not only the penalty for perjury but with regard to—
A (Interposing) The twenty-two years. [Emphasis added]
Q. And you had been given an opportunity to identify this man before, hadn’t you?
A. Yes, sir.
Q. At the lineup.
A. Yes, sir.
Q. And you didn’t identify him.
A. No, sir.
Tr_
Q. Are you telling us that, when they visited you on July the 18th, 1981, at that time you could identify the man?
A. No, sir, I told them I couldn’t
Q. All right.
A. The same thing I told the police at the time of the lineup....

This Court, in ruling upon Ground I (the perjury ground), said:

Fourth alleged ground for relief relates to his claim that the in-court identification of Smith by witnesses Thomas and Wells was “impermissibly tainted.” This issue was raised in petitioner Smith’s supplemental assignment of error and was considered by this Court on direct appeal. Smith v. State, supra, at 574. Having been fully adjudicated against petitioner Smith, this issue is barred from consideration in post-conviction relief proceedings. Holloway v. State, supra. [434 So.2d at 216].

As stated above, in the opinion affirming the lower court on direct appeal, this Court said:

Defense counsel also asserted additional argument concerning “in court identification” of the defendant by state’s witness. Also discussed in the response of defense counsel is the issue of the “pretrial identification” of the defendant.
This Court has carefully considered all these matters discussed in the paragraph immediately above, and all propositions argued.... No reversible error has been pointed out by counsel, and we have been unable to find such. [419 So.2d at 574],

On the 13th day of November, 1983, Kenneth Thomas and James Wells made sworn statements for petitioner Smith wherein they stated that their testimony at the Smith trial was false and untrue. The judgment of the lower court in the Smith case was affirmed by this Court on August 11, 1982, almost one and one-half years prior to those statements. When the State became aware of such affidavits, the Attorney General’s Office conducted a search for those witnesses through the combined forces of its Organized Crime Division and the Jackson Police Department in order to interview them. After one and one-half months, they were finally found. Interviews were arranged with them and the attorneys who represented them were present. Attorneys from the Attorney General’s Office were not allowed to record their statements and were only permitted to make handwritten notes. It developed that the attorneys representing Wells and Thomas were arranged for by petitioner Smith.

The Attorney General’s Office has attached to its response to the application for leave to file petition for writ of error coram nobis the affidavits of William S. Boyd, III, Special Assistant Attorney General; Edward J. Peters, District Attorney for Hinds and Yazoo Counties, Mississippi; Vaughn Davis, Jr., Assistant District Attorney for Hinds and Yazoo Counties, Mississippi; Lt. Don Bartlett, Jackson, Mississippi Police Department; Detective D.F. Fondren, Jackson, Mississippi Police Department; Detective Ronald Patton, Jackson, Mississippi Police Department; Lt. T.C. Barfield, Commander, Homicide and Robbery Division, Jackson, Mississippi Police Department; and Sgt. G.E. Oatis, Jackson, Mississippi Police Department; which affidavits are in support of the position of the State of Mississippi and contra to the affidavits of Thomas and Wells.

In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court held that the presentation of known false evidence, and nondisclosure of evidence affecting credibility, are grounds for retrial if the deception was material, that is if it might “... ‘in any reasonable likelihood have affected the judgment of the jury.’ ” [405 U.S. at 154, 92 S.Ct. at 766, 31 L.Ed.2d at 108]. See also United States v. Johnson, 487 F.2d 1318, 1325 (5th Cir. 1974); and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) [Mere possibility that undisclosed evidence might have aided defense or might have affected outcome of trial does not establish “materiality” in constitutional sense].

In Lang v. State, 230 Miss. 147, 92 So.2d 670 (1957), this Court, in addressing the question of newly-discovered evidence and due diligence, said:

We entertain and sustain the petition under Chapter 250, Laws of 1952, as being a petition for leave to file in the trial court a motion to vacate the judgment and for a new trial on the ground of newly discovered evidence, and such leave is hereby granted. We recognize that there must be an end to litigation, and a judgment once solemnly entered must not be lightly opened or vacated, and never except for. cogent reasons. Such a petition should be confined to the narrowest limits compatible with justice; it will be sustained only if the newly discovered evidence is of such nature that it would be practically conclusive that it would cause a different result; it will not be sustained if the petitioner or his attorney knew of the existence of such evidence at the time of the trial, or could have discovered it by the exercise of due diligence; it will not be sustained if the newly discovered evidence is merely cumulative, or additional to that adduced at the trial; it will not be sustained if the newly discovered evidence merely tends to impeach other testimony offered at the trial; and it must be filed as soon as reasonably practical after the discovery of the new evidence. [230 Miss, at 171-172, 92 So.2d at 675-676],

I am of the opinion that the present application for leave to file petition for writ of error coram nobis is an extension and renewal of the question raised on direct appeal and on the first application and that the ground is not sufficient to require, or permit, granting of the application.

II.

For Ground II, petitioner Smith contends that Officer Oatis did not have probable cause to stop the Pinto automobile and to arrest him and that the evidence obtained Dy the search was inadmissible. However, when Thomas and Wells returned to the parking lot and spoke with Officer Oatis, he did not know that an assault had occurred. They related to him what they had seen, Officer Oatis conducted an investigation around the parking lot, saw the unoccupied automobile of Mrs. Roberts, picked up from the parking lot personal items of hers, including automobile keys, glasses and one shoe. He obtained a description of the assailant, although not in detail. He knew the assailant was driving a red Pinto automobile and he knew his general description. When he met the Pinto automobile on Robinson Road, he stopped petitioner Smith, the driver, in his investigation of a felony violation. At that time, the body of Mrs. Roberts had not been discovered and the officers were trying to save her life. Officer Oatis stopped the Pinto automobile, he saw petitioner Smith push something under the seat, which proved to be the mate to the shoe which he had found on the parking lot. Thereupon, he arrested petitioner Smith.

The facts upon which Officer Oatis relied in stopping and arresting Smith were those acquired by him at the scene of the abduction, viz, the parking lot, from Thomas and Wells, not the testimony upon the trial of the case. This ground was not presented to the Court, or assigned as error, on direct appeal from Smith’s conviction, nor was it assigned as a ground in the first application for leave to file petition for writ of error coram nobis. Therefore, it may not be presented on this application and is procedurally barred.

Assuming arguendo that the ground is not procedurally barred, then we are of the opinion that Officer Oatis, in the investigation of this felony violation, had probable cause to stop the red Pinto automobile, and, upon seeing the suspicious conduct of the petitioner Smith, and finding the shoe of Mrs. Roberts in the possession of Smith, had probable cause to arrest him and to conduct a search of the automobile.

I am of the opinion that this application for leave to file petition for writ of error coram nobis in the Circuit Court of the First Judicial District of Hinds County, Mississippi, should be denied, and I dissent from the majority opinion.

WALKER, P.J., and PRATHER and SULLIVAN, JJ., join this opinion.

      . We affirmed his conviction in Smith v. State, 419 So.2d 563 (Miss.1982). Smith filed a petition for writ of error coram nobis with us on June 1, 1983, which assigned numerous grounds for relief, and which we denied. See: Smith v. State, 434 So.2d 212 (Miss.1983).

      . The prospect for one of them, Kenneth Thomas, is even worse. When he testified, he had served three years under an armed robbery conviction, with twenty-two years suspended on good behavior.

      . Smith v. State, 419 So.2d 563 sub-paragraph Page 564: "... Thomas’s driving companion, James Wells, stated that he saw the defendant grab the woman and choke her, but, not wanting to become ‘involved’, they drove on." Page 565: "... At trial, Thomas testified that the next day he identified the defendant in a lineup as the person with whom the woman struggled outside the store.

      The footnote to this statement in the original opinion recognized Thomas’s testimony on cross-examination was "confused and contradictory”, but also noted that its credibility was a jury issue.
      Page 567: "... He [Smith] was seen struggling with a woman at the Tote-Sum Store.”
      Page 569: In the chronology of events: "... Smith was seen leaving Tote-Sum with Mrs. Roberts, by two witnesses.”

       In affirming petitioner's conviction, the Mississippi Supreme Court stated that Thomas had identified petitioner at the original lineup. Smith v. State, 419 So.2d 563, 565 (Miss.1982). This is simply wrong. While the Mississippi Supreme Court attempted to discount the effect of Thomas’ unequivocal statements on cross-ex-animation, id. 565 n. 1, the record speaks for itself.

      . In-court identification of petitioner Smith.

      . Affidavit of William S. Boyd, III, Special Assistant Attorney General, at p. 10, exhibit to the State's Response.


author: SULLIVAN, Justice, for the Court:

text:
    Karl J. LEE v. STATE of Mississippi.
    No. 55116.
    Supreme Court of Mississippi.
    Oct. 3, 1984.

      John R. Reeves, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BOWLING, HAWKINS and SULLIVAN.
   SULLIVAN, Justice, for the Court:

Appellant, Karl J. Lee, was convicted of grand larceny and as an habitual criminal in the Circuit Court of Hinds County, Mississippi, and sentenced to five years without parole in the custody of the Mississippi Department of Corrections, and fined $1,000.00. Finding no error, we affirm.

At approximately 11:30 on the night of January 2, 1982, Tim Roberson’s 1978 Volkswagen was stolen from his driveway. On January 5, 1982, the appellant was arrested at a roadside park in Hernando, Mississippi. When arrested he was behind the wheel of the Volkswagen and was accompanied by one David Perkins.

On January 6, 1982, Officer J. Burkett transported Lee from Hernando to Jackson. At the corner of Pearl and South State streets Lee escaped from Burkett.

On January 11, 1982, Lee surrendered to the Jackson police. That same day, he made a statement about the crime to Officer Burkett.

On January 13, 1982, Lee gave Burkett yet a second statement concerning the theft of the automobile.

Appellant filed a motion to suppress the statements, based upon the ground that they were obtained by promises of leniency. At the suppression hearing, the appellant testified that on January 11th Burkett was angry with him for running away with Burkett’s handcuffs, but that in spite of this anger Burkett promised leniency if he would make a statement. The appellant denied the January 11th statement was made in the presence of Sgt. J.B. Williams.

The appellant admitted that on January 13th he signed a waiver of rights but he denied that former Detective Necaise was present on that occasion. He also denied that he ever told Burkett that he stole the automobile, but asserted that he had told Burkett that Perkins took the car and picked him up later in the evening.

Officer Burkett testified that on the 11th he gave Lee his Miranda warnings in the presence of Sgt. Williams, and then Lee admitted that he and Perkins took the automobile but that Perkins was the driver. Burkett further testified that on January 13th he obtained a signed waiver of Miranda rights from Lee, which both Burkett and former detective Necaise witnessed. Lee then made a statement that he alone took the automobile. Burkett denied that Lee was coerced, threatened or offered any hope of leniency or reward to induce him to give either statement.

Officer Williams testified that on January 11th, 1982, he heard Burkett give Lee his Miranda rights. Williams further said no one threatened Lee or offered him leniency.

Former detective P.R. Necaise testified at the suppression hearing that on January 13th, 1982, he witnessed Burkett give Lee his Miranda rights and was present when Lee signed a waiver of those rights. No promises of leniency, threats or hopes of reward were made to Lee in Necaise’s presence.

At the conclusion of the suppression hearing, the trial judge overruled the motion to suppress the statements. The trial court also denied the appellant’s motion in limine to suppress the evidence of his escape from Officer Burkett.

At the trial, Burkett testified regarding Lee’s escape and his statements of January 11th and January 13th, 1982.

After the state rested, appellant moved to require the state to produce all of the witnesses to the statements in order for the jury to pass upon their credibility. This motion was overruled. Appellant then moved for a directed verdict on the ground that the state had failed to prove that Lee actually got in the automobile and drove it away. This motion was also overruled.

Appellant then called Officer J.B. Williams as an adverse witness and Williams repeated his testimony that on January 11, 1982, he heard Lee tell Officer Burkett that he and Perkins had taken the car and that Perkins had driven it away.

The appellant’s sister then testified that on the night of the theft the appellant was at her home from 9:00 p.m. until 2:00 a.m.

The appellant himself testified that he was at his sister’s house from 9:00 p.m. until 1:30 a.m., and that Perkins called him and picked him up about four blocks from his sister’s home at approximately 2:00 a.m.

The appellant denied that he was guilty of the charge of auto theft but admitted to two prior burglary convictions. He also denied that he had ever told any officer that anyone other than Perkins drove the car away.

I.

MUST THE STATE PRODUCE AT TRIAL EVERY WITNESS TO A STATEMENT SO THAT THE JURY MAY PASS UPON THE CREDIBILITY OF EACH OF THE WITNESSES?

Agee v. State, 185 So.2d 671 (Miss.1966), requires that at a pre-trial hearing on the voluntariness of a statement once the accused puts in issue that voluntariness the state must offer all witnesses who were present at the questioning and the confession or give an adequate reason for their absence.

Anderson v. State, 241 So.2d 677 (Miss.1970), holds that, while it is initially for the trial court to rule upon the voluntariness of the confession, the appellant is entitled to have the jury pass upon the factual issues with respect to its truth and voluntariness. The jury does evaluate the weight and credibility of the witnesses as to the matters surrounding the confession.

We have reiterated twice this year that the weight and credibility of an accused’s confession is for the jury to decide. Wilson v. State, 451 So.2d 724, 726 (Miss.1984); Ruffin v. State, 447 So.2d 113, 116 (Miss.1984).

These cases stand for the proposition that, after the trial judge has ruled upon the voluntariness of the confession, the accused is entitled to have the jury evaluate the weight and credibility of the confession. But, in none of the cases cited by appellant has this Court compelled the state to produce all of the witnesses at trial to rebut the accused’s allegations that the confession was involuntary, in order that the jury may pass upon the credibility of each and every witness.

To the contrary, this Court has held, in McNeal v. State, 405 So.2d 90 (Miss.1981), that it was within the State’s discretion to recall all the officers to testify at trial to the voluntariness of the confession. Id. at 92. In McNeal, supra, this Court said:

The question before the Court is whether, after a suppression hearing has been held in accordance with the dictates of Agee, it is necessary for the state to recall all of the officers present when the confession was taken and signed to again rebut the defendant’s allegations of coercion after she testified in her defense before the jury. We answer that question in the negative. Once the court has ruled, as a matter of law, that a confession was freely and voluntarily given, and it is admitted into evidence, the jury is the sole judge of its weight and worth as evidence in determining the guilt or innocence of the defendant. Although it is within the discretion of the state to recall the officers, or any particular officer, to rebut the defendant’s claim of coercion or mistreatment, there is always the practical risk that the jury will believe the defendant and fail to give the confession any weight in its deliberations.
The competency of a confession as evidence is for the court to decide as a matter of law, while the weight and credibility of a confession is for the jury to decide along with other testimony and physical evidence.
Once a suppression hearing has been held in strict accordance with the mandate of Agee, outside the presence of the jury, and the court has ruled, as a matter of law, that the confession was freely and voluntarily given and the confession is admitted into evidence, the state need not, except in its discretion, recall all the officers to again testify to the voluntariness of the confession after the defendant takes the stand and claims that the confession was obtained by coercion, etc. Ratliff v. State, 317 So.2d 403, 405 (Miss.1975); Rhone v. State, 254 So.2d 750 (Miss.1971).

405 So.2d at 91-92.

McNeal, supra, squarely rejects the appellant’s contention that the state is required to recall all the officers at trial to rebut the appellant’s testimony that the statements were given involuntarily. The trial court correctly overruled appellant’s objection.

II.

WAS IT REVERSIBLE ERROR TO ALLOW TESTIMONY INTO EVIDENCE OF THE APPELLANT’S ESCAPE?

Appellant contends that evidence of his flight from custody amounted to evidence of an independent and unconnected crime from that for which he was on trial. He contends that the general rule excluding evidence that the accused committed another crime independent of and unconnected with the one for which he is on trial applies to the evidence of his escape because escape is a crime under Mississippi Code Annotated § 97-9-49 (Supp.1983), punishable by up to five years imprisonment. However, the cases cited by appellant do not involve instances where evidence of flight was introduced; rather they concern the introduction of other crimes similar to the one for which the accused was on trial. Brown v. State, 224 Miss. 498, 80 So.2d 761 (1955) (other bad checks); Hawkins v. State, 224 Miss. 309, 80 So.2d 1 (1955) (collection of insurance in unrelated matters in prosecution for murder of insured wife); Massey v. State, 19 So.2d 476 (Miss.1944) (other robberies).

The evidence of Lee’s escape was admitted to show his conduct. In Hill v. State, 432 So.2d 427 (Miss.1983), we held that flight is admissible on the issue of guilty knowledge. Id. at 438. In McClendon v. State, 387 So.2d 112 (Miss.1980), cited in Hill, supra, we quoted with approval 2 Wigmore on Evidence, 3rd Ed. § 279, to the effect that “it is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.”

Our cases directly addressing the admissibility of flight hold that evidence of flight as guilty conduct is admissible. Appellant’s second assignment of error is, therefore, without merit.

III.

WAS IT REVERSIBLE ERROR TO DENY THE APPELLANT’S MOTION FOR A VERDICT NOTWITHSTANDING THE VERDICT OR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

Appellant relies exclusively in his brief upon the contention that a reasonable doubt was raised by the alibi given by appellant’s sister. He contends that the jury’s rejection of the alibi defense compels the conclusion that the verdict was wholly against the weight of the evidence, and was a result of bias and prejudice on the part of the jury.

He is mistaken. The jury is under no obligation to accept an alibi defense. In Tubbs v. State, 402 So.2d 830 (Miss.1981), this Court stated:

Tubbs’ defense was an alibi and it is well established that a jury is not under a duty to accept an alibi defense, but must consider all of the testimony in determining the guilt or innocence of an accused. An alibi defense presents a question of fact to be resolved by the jury. In Spikes v. State, 302 So.2d 250 (Miss.1974), we stated:
The jury was not required to accept this alibi. Its duty was to evaluate the testimony of the witnesses for the State and defendant, and to determine whether the evidence showed beyond a reasonable doubt that appellant was guilty. The State’s evidence was contradictory of that of appellant concerning an alibi. It was a jury issue. Newton v. State, 1956, 229 Miss. 267, 90 So.2d 375. (Kelly v. State, 239 Miss. 683, 690, 124 So.2d 840, 842 (1960). (302 So.2d at 251) Accord, Johnson v. State, 359 So.2d 1371 (Miss.1978).

402 So.2d at 834-35.

The resolution of the conflict between the state’s evidence and the appellant’s alibi was a question of fact for the jury to resolve. The state’s evidence was ample to support the jury verdict, and the jury is not required to accept the appellant’s alibi. There is no merit to this assignment.

IV.

WAS IT REVERSIBLE ERROR TO IMPOSE A $1,000 FINE UPON THE APPELLANT WHO IS AN INDIGENT?

It is uncontradicted that appellant is a pauper, and as such could not pay the $1,000 fine. Appellant contends, therefore, that if the Department of Corrections is allowed to hold the appellant until the $1,000 fine is paid, this would constitute an unconstitutional imprisonment for debt.

Appellant cites no authority for the proposition that no fine may be imposed upon an indigent found guilty of a crime, and we hold that it is not reversible error to fine this appellant $1,000 despite his indigency.

However, we have held in Cassibry v. State, 453 So.2d 1298 (Miss.1984), that “an indigent may not be incarcerated because he is financially unable to comply with an otherwise lawfully imposed sentence of a fine.”

Therefore, if, after the appellant has completed his sentence, the Department of Corrections attempts to keep him incarcerated for failure to pay the fine, then the trial court must determine at that time whether appellant is financially unable to pay the fine and, if so, must consider and apply one of the alternatives to imprisonment set out in Mississippi Code Annotated § 99-19-20 (Supp.1983). Cassibry v. State, supra.

While we reject appellant’s contention that, as an indigent, he may not be fined upon being found guilty of a crime, we caution that Cassibry v. State, supra, requires consideration of statutory alternatives to imprisonment for indigents financially unable to pay a fine.

The fine of $1,000 levied against appellant as part of his sentence is not reversible error.

The conviction and sentence are affirmed.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.

      . Viverett v. State, 269 So.2d 862 (Miss.1972); Anderson v. State, 241 So.2d 677 (Miss.1970); Hurst v. State, 240 So.2d 273 (Miss.1970); Weathers v. State, 237 So.2d 441 (Miss.1970); Stevens v. State, 228 So.2d 888 (Miss.1969); Crouse v. State, 229 Miss. 15, 89 So.2d 919 (1956); Holmes v. State, 56 So.2d 815 (Miss.1952); Ruffin v. State, 205 Miss. 642, 39 So.2d 269 (1949); Williams v. State, 12 So.2d 156 (Miss.1943); Humphries v. State, 181 Miss. 325, 179 So. 561 (1938); Allen v. State, 180 Miss. 418, 177 So. 787 (1938); Wohner v. State, 175 Miss. 428, 167 So. 622 (1936); Buckler v. State, 171 Miss. 353, 157 So. 353 (1934); Smith v. State, 165 Miss. 462, 144 So. 233 (1932); Whittaker v. State, 169 Miss. 517, 142 So. 474 (1932); Tyler v. State, 159 Miss. 223, 131 So. 417 (1930); Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687 (1930); Stubbs v. State, 148 Miss. 764, 114 So. 827 (1927).
      These cases recognize the necessity for a preliminary hearing on the voluntariness of a confession and the rule that the weight and credibility of a confession is for the jury to determine. None, however, require the state to recall at trial all the officers who witnessed the confession to rebut an accused’s assertion that the confession was not given voluntarily.


text:
    Charles W. STRICKLAND v. M.H. McMATH GIN, INC. and American Auto Insurance Company.
    No. 54444.
    Supreme Court of Mississippi.
    Oct. 3, 1984.

      Robert G. Germany, Cothren & Pittman, Jackson, for appellant.
    Thomas H. Suttle, Jr., Daniel, Coker, Horton & Bell, Jackson, for appellees.
    Before WALKER, P.J., and HAWKINS and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

This is an appeal from a decision by the Circuit Court of Humphreys County reversing an award by the Workmen’s Compensation Commission of disability benefits and medical expenses to appellant for injuries sustained in a fall at work at appellee’s cotton gin. The issues presented for decision are whether (1) certain factual inconsistencies between the evidence and the hypothetical question posed to appellant’s doctor were so material as to require that the doctor’s conclusion be disregarded that the fall caused appellant’s back condition, and whether (2) the failure of appellant’s Illinois doctors to furnish appellee with a report within the prescribed time on appellant’s treatment bars appellant’s recovery for the medical expenses incurred in Illinois. We conclude that the discrepancies between the evidence and the hypothetical question were not so significant as to render incompetent the doctor’s finding of a causal connection between the fall and appellant’s back condition, and conclude that appellant showed no grounds for excusing the requirement that he have his Illinois doctors furnish a medical report to appellee within twenty days of the first treatment in order to secure payment of those medical expenses. We reverse and remand to the full Commission to enter an appropriate award.

I.

At about 4 o’clock p.m. on the afternoon of September 20, 1976, appellant Charles W. Strickland, a truck driver and occasional laborer for appellee, McMath Gin, Inc., was assisting several co-workers in the repair of a cotton press. A co-worker standing on top of the press ten feet above appellant was passing metal weights, known as “dogs” down to appellant to carry them outside. As he was walking away with one of the “dogs” he slipped upon some grease and water and fell backwards onto the concrete floor. Appellant managed to hold the weight away from him to prevent being crushed by it and was able to break the fall with his elbows. Although he sensed pain in his lower back, he got up and completed the day’s work. Less than an hour after he left work, he attempted to get out of his vehicle when the pain in his back became so strong that he required the assistance of a friend to help him out of the car.

The next morning, after he reported the injury to his employer, he was sent to a doctor who recommended hospitalization. Over the next three to four weeks, appellant was treated by several doctors in various hospitals in Mississippi. As his condition was not improving and as he had no funds to support himself in Mississippi, he requested that he be transferred to a physician or hospital in Chicago, Illinois, where his family lived. His treating physician refused to transfer him, so on October 14, 1976, he left Mississippi and entered the VA hospital in Chicago. For the next ten months he was treated in several Chicago area hospitals for his back injury.

The accident was described in Strickland’s motion to controvert as occurring when a “co-worker threw a 130-pound iron piece of equipment down to claimant from a height of 10 feet” which he caught but “was thrown backward to the ground, twisting to avoid being crushed”. At the hearing before the administrative judge, Strickland testified that the weight was handed to him and that he was carrying it outside when he slipped and fell. He estimated that the weight of the “dog” was between 35 and 40 pounds. The only medical evidence in the record from the Mississippi physicians was that the appellant suffered from a back pain, source undetermined.

Dr. Allan Hirschtick, an orthopedic surgeon from Chicago, Illinois, testified by deposition on behalf of appellant. Dr. Hirschtick testified that he saw appellant on two occasions in February, 1977, and in September, 1978. In his opinion, the appellant was suffering from a herniated inter-vertebral disc which occurred as a result of his injury on the job in September, 1976. The deposition contained a lengthy hypothetical question posed to Dr. Hirschtick concerning the appellant’s injury to which no objection was made by the attorneys for the employer. In pertinent part, the hypothetical question described the injury as occurring in the following manner:

... While he is standing on a floor with some grease and water beneath his feet, a fellow employee passes or drops down to him a metal weight of approximately 130 pounds from the height of approximately ten feet to this man, who in the process of receiving the metal falls backward holding the metal away from his body, lands on his rear, and then falls further so that his back then strikes the floor and he strikes a glancing blow to the back of his head.
At the same time in an endeavor to keep the weight off his body, he makes a sudden twisting motion.

The facts contained in the hypothetical appear to have been taken from the motion to controvert and not from the testimony given by the appellant before the administrative law judge.

On December 19, 1979, the administrative judge entered an order finding that there was no credible medical evidence to establish that the herniated intervertebral disc was in any way related to the accidental injury. This finding was based on the ruling of the administrative judge that the unopposed hypothetical question submitted to Dr. Hirschtick contained material facts which were not in the record.

The full Commission reversed the administrative judge as to the admissibility of the hypothetical question. The Commission found that the hypothetical contained two facts that were inconsistent with the testimony, (1) the object involved weighed 40 pounds, not 130 pounds; (2) Strickland was walking with the object rather than catching the object when he fell. The Commission found that the inconsistencies in the hypothetical question as to the details of Strickland’s fall were not such as to justify “rejection of the unopposed testimony of a qualified and disinterested expert without the opposing parties’ objection.” The Commission found that on a preponderance of the evidence Strickland’s back condition was directly related to the compensable accident of September 20, 1976, and ordered that the employer pay temporary total disability benefits of $68 per week for a period of approximately two years beginning on the date of the accident. The Commission also ordered the employer to pay for all reasonable and necessary medical services, including those rendered to Strickland by Dr. Hirschtick and by the Chicago area hospitals.

On appeal, the circuit court of Hum-phreys County, Mississippi, reversed the Commission order on the ground that the hypothetical question posed to Dr. Hirscht-ick should not have been considered because material facts contained in the hypothetical were not in evidence in the case. That court thus found that there was no credible medical evidence establishing a causal connection between Strickland’s condition and his injury. The court further found that the employer did not authorize and is, therefore, not responsible for any medical services, supplies or treatment that Strickland obtained outside the state of Mississippi.

II.

WERE THE INCONSISTENCIES IN THE HYPOTHETICAL QUESTION SO MATERIAL AS TO REQUIRE THAT DR. HIRSCHTICK’S OPINION BE DISREGARDED?

It is elemental that a compensation claimant generally has the burden of proof of showing an accidental injury arising out of employment and a causal connection between the injury and the claimed disability. Potts v. Lowery, 242 Miss. 300, 134 So.2d 474 (1961). If the hypothetical question and Dr. Hirschtick’s response to that question must be disregarded, then the appellant has clearly not shown credible medical evidence to support a finding of disability, temporary or permanent, as a result of the injury. The Workmen’s Compensation Commission is the trier of facts, as well as the judge of credibility of the witnesses, and the findings of fact supported by substantial evidence should be affirmed by the circuit court. Roberts v. Junior Food Mart, 308 So.2d 232 (Miss.1975). All questions of law and fact are reviewable by the circuit judge in reviewing a compensation case, Mississippi Code Annotated § 71-3-51 (1972), but unless prejudicial error is found or the verdict is against the overwhelming weight of the credible evidence, the Commission’s order shall be affirmed. Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss.1983). While the procedural rules of the Mississippi Workmen’s Compensation Commission provide that the general rules of evidence shall be relaxed in compensation hearings so as to permit the introduction of any relevant and competent evidence pertaining to the issue that will throw light on the matter in controversy, (Rule 8. See Dunn, Third Edition, Mississippi Workmen’s Compensation, page 594), this does not relieve lawyers from their obligation to object to a hypothetical question if it assumes facts that are not in evidence. Alexander v. Campbell Construction Company, 288 So.2d 4, 7 (Miss.1974).

It is a question of law for this Court to determine whether a hypothetical question on which an expert’s opinion is based is supported by sufficient evidence. See Belesky v. City of Biloxi, 412 So.2d 230, 233 (Miss.1982). While it is generally recognized that, where facts are disputed, a party may state facts in a hypothetical question consistent with his theory of the case, Magnolia Hospital v. Moore, 320 So.2d 793, 798 (Miss.1975), a party may neither assume facts unsupported by any evidence, Washington v. Greenville Manufacturing and Machine Works, 223 So.2d 642, 644 (Miss.1969), nor omit material undisputed facts in a hypothetical question posed to an expert witness, Magnolia Hospital v. Moore, Id. at 799.

A constructive comparison may be drawn between this case and our ruling in Williams Brothers Company v. McIntosh, 226 Miss. 553, 84 So.2d 692 (1956). In McIntosh the claimant was struck on the head by a falling tree and knocked unconscious, producing a brain tumor that eventually killed him. The Commission denied his widow’s claim for benefits on the strength of the medical opinion of his employer’s doctors that there was no causal connection between the accident and the tumor. On appeal, this Court held that the doctor’s opinion which was based upon the assumption that the claimant had been brushed, not struck, on the head by the falling tree was erroneous where there was no evidence in the record to show that the claimant had merely been brushed by the tree. The Court stated:

A hypothetical question should assume a state of facts, which has been shown by the evidence of other witnesses or by the testimony of the expert himself.... The nature or severity of the blow from the limb was the original landmark. When the point of beginning is uncertain, no one can feel certain that the established line is correct.

Id. at 560, 84 So.2d at 695. The McIntosh case involved an instance where the severity of the blow to the head was so essential to the diagnosis, that a medical opinion erroneously based on an assumption greatly minimizing the severity of the blow must be disregarded.

In the case sub judice, as in the McIntosh ease, there is a noticeable discrepancy between the evidence and the hypothetical question. In *the case sub judice, as in McIntosh, our focus is on whether there was evidence in the record on which counsel for appellant could base a state of facts found in the hypothetical question. The two inconsistencies concerned the weight of the “dog” and what the appellant was doing at the time he slipped and fell. On the more serious discrepancy, the weight of the “dog”, the record is in conflict. Appel-lee’s witnesses estimated its weight at 40 pounds but appellant estimated its weight at about 100 pounds. On the less serious discrepancy, whether the appellant was standing or walking when he fell, appellant’s own testimony was that he was walking and carrying the weight. In evaluating the discrepancies in light of the evidence, we find, as in McIntosh, the severity of the fall was essential to the diagnosis, but conclude that there was sufficient evidence upon which to base the facts contained in the hypothetical posed to Dr. Hirschtick. When compared to the extreme exaggeration found in the McIntosh case, the severity of the fall in this case was not so exaggerated in the hypothetical question as to require its exclusion, in view of the conflicting evidence.

As noted by the Commission, apart from the weight of the object and the actions of the appellant, all other relevant and material facts of record essential to the formulation of an opinion based on a reasonable medical certainty were accurately portrayed in the hypothetical question. The evidence is clear that the claimant sustained a fall at work; that he began to experience pain and limitation of motion within one hour of his fall; and that since the fall claimant has continued to obtain medical treatment for his back condition. We agree with the Commission that the inconsistencies in the hypothetical question which were related solely to the details of claimant’s fall were not such as to justify rejection of the unopposed testimony of a qualified and disinterested expert without the opposing party’s objection.

With the inclusion of the expert witness’s response to the hypothetical question as discussed above, the credible medical evidence certainly supported a finding of disability, and it was error for the circuit court to rule otherwise.

III.

DID THE CIRCUIT COURT ERR IN NOT REQUIRING THE EMPLOYER TO PAY FOR ALL MEDICAL EXPENSES INCURRED BY THE APPELLANT FOR MEDICAL SERVICES RENDERED TO HIM IN ILLINOIS?

The workmen’s compensation statute in regard to medical services in force at the time of this case, Mississippi Code Annotated § 71-3-15 (1972) states:

... The employee shall not be entitled to recover any amount expended by him for such treatment or services, except in emergency cases, unless he shall have requested his employer to furnish the same and the employer shall have refused or neglected to do so, .... Nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty (20) • days following the first treatment the physician giving such treatment furnish to the employer and the commission a report of such injury and treatment, on a form prescribed by the commission. The commission may, however, excuse the failure to furnish such report within twenty (20) days when it finds it to be in the interest of justice to do so, and may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee.

It is undisputed that appellant did not request further medical treatment from ap-pellee, his employer, upon his arrival in Illinois. It is also clear that appellant did not have his Illinois doctors furnish appel-lee with medical reports within twenty days after their first treatment of appellant. Appellees rely on Greenville Mills v. Wilkinson, 297 So.2d 905 (Miss.1974), for the proposition that where an employee does not request any further medical treatment from his employer, such medical expense is limited to $100.00 unless there is an exception to the rule as set out in the statute.

Appellant relies upon Sperry-Vickers, Inc. v. Honea, 394 So.2d 1380 (Miss.1981), wherein this Court allowed payment of medical benefits where the employee failed to comply with § 71-3-15 on the basis of the “interests of justice” exception contained in that statute. In Honea, the employer knew of the employee’s condition and knew he would require medical treatment. Also, the employer failed to show that, had it been allowed to provide the medical treatment, it would have been different. Id. at 1384. The Court relied upon the portion of the statute which allows the Commission to “excuse the failure to furnish such a report ... when it finds it to be in the interest of justice to do so ... ” Specifically, the Court relied upon Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645, 649 (Miss.1974), in which a claim brought after a statutory period had expired was allowed on the ground that the employee believed the condition not to be job-related.

The case sub judice is distinguishable from the Honea and the Bradford cases on this last point. Strickland told all the Mississippi doctors that he attributed his back condition to the accidental fall while at work. Thus, the ground upon which the Honea court excused the claimant’s failure to furnish medical reports does not exist in this case. Therefore, the employer or its carrier are not liable for the full amount of Strickland’s medical bill incurred after his arrival in Illinois because it was not shown that he requested his employer to furnish further medical care, and that the employer refused or neglected further medical treatment, nor was any emergency shown or any interest of justice established which would excuse the failure to forward to the employer a medical report within 20 days after the first treatment by the Chicago physician. Greenville Mills v. Wilkinson, Id. at 908.

However, there remains the question of whether McMath Gin would be liable under § 71-3-15(5) (1972), for a limited amount of his medical bills. That section provides that:

(5) An injured worker who believes that his best interest has been prejudiced by the findings of the physician designated by the employer or carrier shall have the privilege of a medical examination by a physician of his own choosing, at the expense of the carrier or employer. Such examination may be had at any time after injury and prior to the closing of the case, provided that the charge shall not exceed one hundred dollars ($100.00) and shall be paid by the carrier or employer where the previous medical findings are upset, but paid by the employee if previous medical findings are confirmed.

In this case, the Mississippi doctors had not reached a firm diagnosis at the time appellant left this state and had only determined that the appellant had a pain in his back from an undetermined cause. Dr. Hirschtick’s diagnosis established that appellant was suffering from a herniated in-tervertebral disc, and that cannot be said to have confirmed the previous medical findings because no such diagnosis had been reached by the Mississippi doctors. If anything, Dr. Hirschtick’s diagnosis upset the previous medical findings; therefore, appellant would appear to be entitled to recover up to $100 of the cost of Dr. Hirscht-ick’s medical services as provided under § 71-3-15(5). See Williamson v. Delta Millworks, Inc., 262 So.2d 183, 187 (Miss.1972).

IV.

In summary, we conclude that the circuit court erroneously rejected Dr. Hirschtick’s medical opinion as to causal connection because the inconsistencies between the evidence and the hypothetical question were based upon conflicting evidence. We further find that appellant is entitled to recover up to $100 of the medical expenses incurred after his departure from Mississippi, as provided under § 71-3-15(5). We reverse the circuit court and remand this case to the full Commission to enter an award in conformance with this opinion.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

PATTERSON, C.J., and BOWLING, J., not participating.