author: ROBERTSON, Justice, WALKER, Presiding Justice,

text:
    Howard Leon MORRIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 53847.
    Supreme Court of Mississippi.
    Sept. 7, 1983.

      W.S. Stuckey, Jr., Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court.

I.

Howard Leon Morris, Defendant below and Appellant here, was convicted in the Circuit Court of Leflore County, Mississippi, of the crime of possession of more than one kilogram of marijuana and was sentenced to eight years imprisonment and fined $10,-000. Understandably aggrieved, he appeals.

On the evening of his arrest, Morris was interviewed at length by law enforcement authorities. The interview was tape recorded. He substantially incriminated himself on this and other potential charges. Prior to trial defense counsel requested produetion of the statement pursuant to Rule 4.06(2) of the Uniform Criminal Rules of Circuit Court Practice. The State failed to produce the statement and subsequently, over objection of Defendant, a key state witness was allowed to testify in regard thereto. Because the State failed to comply with its obligation to produce the statement as required by Rule 4.06, we reverse and remand for a new trial.

II.

On the evening of August 27, 1981, Morris and one Johnny Bowen were riding in Bowen’s pickup on the Old Humphreys Highway in Leflore County, Mississippi. Bowen was driving. Morris was a passenger on the right side of the vehicle.

At approximately 6:00 p.m., Leflore County Sheriff Ricky Banks observed the vehicle weaving across the white line. He ordered the vehicle to pull over and stop. Sheriff Banks approached the pickup on the driver’s side. Bowen opened the door and got out. Through the open door, Sheriff Banks could see Morris on the passenger side with a grocery sack between his legs.

Sheriff Banks then walked around to the right side of the vehicle, and as he did so, Morris got out. Sheriff Banks testified that, as Morris.got out, a plastic bag containing a green leafy substance fell out of the truck. According to Defendant Morris, the bag never fell out but remained on the seat. In any event, Banks seized the bag, recognized it as marijuana, and put it in his pocket. Banks then looked into the larger paper bag, which was opén, and found that it contained a number of smaller plastic bags also filled with marijuana.

Banks placed Bowen and Morris under arrest. He then seized the grocery bag and, with the two men in custody, drove back to his office in Greenwood. There, the brown sack was weighed and found to contain approximately four pounds of marijuana.

Once in the custody of the sheriff in the Leflore County Jail, Morris was given the standard Miranda warnings. He was questioned intermittently thereafter. Agents from the State Narcotics Bureau arrived and, together with Banks, they persistently besought Morris to tell them not only about the marijuana in question but also about other trafficking in illegal controlled substances.

At approximately 10:30 p.m. on the same evening, some four hours after the arrest, the interview which has given rise to the troublesome issue in this case began. Present were Agent Humphreys of the State Narcotics Bureau, Sheriff Banks, and Morris. The typed verbatim transcript of the tape recorded interview is some 29 pages in length. Questions put to Morris relating to the matter for which he was then under arrest appear on page 18 only. The rest of the interview consists of a far ranging interrogation about various illegal drug transactions the authorities thought Morris may have been involved in or may have knowledge of. Suffice it to say that the statement is substantially incriminating.

The transcribed interview was used by the State at trial in two ways. First, as a part of the State’s case in chief Sheriff Banks testified. On cross-examination he sandbagged unknowing defense counsel. At the time counsel had no knowledge of the existence of a transcribed interview, much less its contents. Sheriff Banks, however, was very much aware of the statement. In a wholly unresponsive answer to an admittedly inept question, Banks blurted out in the presence of the jury that Morris had brought some 200 pounds of marijuana into the Greenwood area. This information appears on page 18 of the transcribed interview.

When the defense put on its case, the transcribed interview had still not been disclosed. Morris took the stand in his own defense. The State once again “sandbagged”. Then in rebuttal the State recalled Sheriff Banks who produced the statement and proceeded to impeach Morris with it. This was the first knowledge the defense had of the existence of the statement. The defense made timely and proper objection which was overruled. Hence this appeal.

III.

A.

The dispositive issue on this appeal arises out of the non-disclosure of the typed verbatim transcript of the State’s interrogation of Morris on the night of his arrest.

The case was called for trial on December 14, 1981. Approximately a week earlier Morris’ attorney had an informal pretrial conference with the assistant district attorney in charge of the case. At this conference the State voluntarily produced “some lab reports” and “an arrest report”. Defense counsel states that a request was made for production of any statements that Morris had given law enforcement officers. The State’s attorney responded at trial that she did not specifically recall the request but that if such a request was made, “I did not have any in that file for this particular case.” Defense counsel at trial asked, “And I believe that in looking through your file you indicated that there was no statement that you had?”. The State’s attorney replied, “None that I knew of pertaining to this case; no, sir.”

When the existence of the statement became known during the rebuttal testimony of Sheriff Banks, the State reiterated its position: It had the typed verbatim transcript of the August 27 interview but did not consider it to be related to this case.

To be sure, only one of the 29 typed pages appears to relate to the case at bar. In reviewing Rule 4.06, however, we find no language which would provide that a defendant can discover only those statements he gave which in the State’s opinion are related to the particular case. We hold without the slightest doubt that the statement in question was discoverable under Rule 4.06.

That portion of Rule 4.06 which mandates the production of statements made by an accused, in whatever form preserved, has been authoritatively construed by this Court in Jackson v. State, 426 So.2d 405 (Miss.1983). The facts in Jackson are similar to those presented here.

In Jackson, the defendant was convicted of murdering her former boyfriend. Her defense was self-defense. The trial court had allowed a deputy sheriff to testify to facts contained in an incriminating statement made by the defendant (a memorandum of which had been preserved). The statement had been given shortly after arrest. The only problem was that the written memorandum had not been furnished to the defense counsel when he had requested it. Defense counsel did not know of its existence until the damage had been done. He noticed that, while testifying in rebuttal, the deputy was refreshing his memory from papers he held in his hand. These papers turned out to include a memorandum reflecting details of the confession Jackson had made to the deputy. After finding out what the deputy was referring to, defense counsel moved that his rebuttal testimony be stricken from the record, or, in the alternative, that a mistrial be granted. His requests were denied.

On Jackson’s appeal this Court held that the deputy’s memorandum was, in effect, a discoverable statement within the meaning and contemplation of Rule 4.06. The Jackson Court characterized the failure to produce this statement for opposing counsel as follows:

“In our opinion, the record on the first assignment of error indicates at least some form of what experienced trial attorneys call “sandbagging”. Obviously, the most important part of the entire trial was whether or not Appellant secured the pistol out of the van and it remained in plain view or whether she was carrying it upon her person. There could be no more damaging testimony than that by Deputy Fairburn regarding this point, as the last evidence presented to the jury.
We find it error for the Court to deny Appellant’s motion to either instruct the jury to disregard the rebuttal testimony of Deputy Fairburn or to grant a mistrial.” 426 So.2d at 407.

This Court reversed and Jackson’s case was remanded for a new trial.

On the authority of Jackson, we hold that the State’s failure to produce the statement, coupled with the State’s use of the information contained in the statement both as a part of its case in chief and in rebuttal so infected the proceedings below that Morris’ conviction must be vacated.

B.

We reverse here because the State was obliged to produce the statement but didn’t, not because Morris was prejudiced. A review of the obvious prejudice in this case, however, makes clear the value of the rule and the importance of enforcement.

First, we find that defense counsel was literally “sandbagged” by Sheriff Banks via this statement. Compare Jackson v. State, 426 So.2d 405, 407 (Miss.1983).

On the evening of August 27, 1981, Sheriff Banks was inquiring about the marijuana Morris had brought into the Leflore County area.

“Q. Well, how much did you bring back here to Walter? How much did you and Walter bring in here? This is not going against you, I’d just like to know how much you and Walter brought back in here. [Emphasis added].
A. 210 pounds. 87 and 123.”

Having received assurances that the information would not be used against him, Morris thus told Sheriff Banks that he brought 210 pounds of marijuana into the area.

As the trial commenced, defense counsel was unaware of the transcribed statement and was certainly unaware of this particular question and answer found on page 18.

As a part of the State’s case in chief, Sheriff Banks was called as a witness. On cross-examination defense counsel began pursuing the defense theory on the facts, that the bags of marijuana belonged to someone else and had been put in the truck by someone else. The following colloquy took place:

“Q. All right. Did Howard Morris not indicate to you that the sack was from Mr. Baker’s house that he didn’t know what was in it?
A. You don’t want me to tell you what Howard indicated to me.
Q. Might as well; just get it all out.
A. Howard [Morris, the defendant] indicated to me that he came into town with two hundred pounds of marijuana.

There are, of course, many reasons why the answer was objectionable. It was wholly unresponsive to the question. It gave evidence of criminal activity for which Morris was not on trial. What is important for present purposes is that this was information Morris gave Sheriff Banks after having been assured by Banks that “this is not going against you”. If defense counsel had had the statement, he would have known this. Suffice it to say that the prejudice to Morris here was enormous.

There is yet another form of prejudice to, which Morris was subjected by the failure of the State to produce the statement. The evidence reflects that in plea bargain negotiations Morris had been offered a three year sentence plus a substantial fine. The contents of this statement, if known, should have a major influence on defense counsel’s evaluation of the proposed plea bargain. The statement is sufficiently incriminating that, had it been known, Defendant may well have accepted the plea bargain.

The point to be emphasized is that the Defendant is entitled to enter plea negotiations with all the cards on the table. He is entitled to the opportunity to evaluate his chances at trial with full knowledge of the contents of a statement such as that which we are here concerned. Rule 4.06 gives him this opportunity. The State had the statement. It is substantially incriminating. It should have been produced, but was not. One does not have to have tried many criminal cases to know that such was substantially prejudicial to the Defendant on the question of whether or not he would plea bargain.

Defendant is also entitled to know of the statement before he takes the witness stand. Here, of course, the statement was used by the State in rebuttal. Defendant could well have been subjected to severe cross-examination regarding its contents. Few today would dispute the notion that it is substantially unfair to the defendant for the State to withhold such a statement and allow defense counsel to place his client on the stand with no knowledge of the existence of the statement or its contents.

IV.

On this appeal the State has argued that the defense made no request under Rule 4.06 for production of the statement. We freely concede that the record on this point is less than crystal clear. Moreover, we do not have the assistance of the trial judge’s finding of fact on the question of whether a request was made. Still the only reasonable interpretation of what occurred was that a request was made and that the assistant district attorney was of the impression that she only had to disclose statements related to this case. Twenty-eight pages of the statement relate to other potential cases, and only one page concerns this case. The State did not consider the statement related to this case. That is why the statement was not produced.

We reiterate that nothing in Rule 4.06(2) limits its scope to statements made by the Defendant relating to the particular case. The rule requires the state to produce a “copy of any recorded statement of the defendants to any law enforcement officer”. Morris was arrested at 6:55 p.m. on August 27, 1981. The transcribed statement is of an interview of Morris that began at 10:30 that same evening. Whether it described Morris’ understanding of Einstein’s theory of general relativity or his prediction as to whether the Yankees would win the pennant, any such statement was discoverable.

Our review of Rule 4.06 suggests that it is confusing and ambiguous in an important respect. Where the defendant proceeds informally and without court order, must his request be made in writing? At oral argument the State particularly requested that we answer this question. We do so in the affirmative.

We hold that, where no discovery order has been entered, the request for discovery under Rule 4.06, to be enforceable, must be in writing. We emphasize our past holdings that a formal motion and court order are by no means necessary. The parties are free to proceed, indeed are encouraged to proceed, informally and without invoking the processes of the court (which, to be sure, are available in the event disputes should arise). A letter or other similar informal written format may be employed in making the request for discovery under the above rule.

We recognize that local practices have heretofore varied from county to county and from district to district. We recognize that there are indeed some areas of the state where criminal discovery matters are handled verbally. Certainly nothing said here is intended to discourage lawyers from proceeding on the basis of trust and confidence in each other’s integrity. Nevertheless, to avoid the problems which have arisen in this case and of which we have been made aware in cases around the state, and in the absence of a discovery order, we hold that, in order to be enforceable under Rule 4.06, the discovery request must be made in writing.

Again, because of our recognition that practices have varied from county to county and district to district, the construction we here give to the discovery rule shall be prospective only.

V.

Morris assigns as error the trial court’s ruling admitting the marijuana into evidence. Defendant had made timely objection that the chain of custody had not been established. Because this question could well arise on retrial, we address it here.

The facts on this issue are as follows: Sheriff Banks testified that at the scene of the arrest he seized the small bag and the large bag. He put the small bag in his pocket and the large bag in his car and he took both of them to the Leflore County Sheriffs office in Greenwood. Once there, he put the small plastic bag into an evidence bag, placed his initials on it together with the date, and put it into his evidence safe and locked it. He testified that he was the only one with a key to that safe and that it was not removed from the safe before being transported to the Mississippi Crime Lab by Deputy Frank Davis.

Similarly, the large bag was stapled, taped, and Sheriff Banks put his initials and the date on the sack. This sack was also placed in the evidence cabinet and remained there until Davis carried it to the Crime Lab. The large paper bag contained 22 smaller plastic bags each of which contained marijuana.

The Sheriff’s Deputy delivered the evidence to Mildred Brinson in the Mississippi Crime Lab. Myrtis Jean Smith was the technician at the lab who inspected, examined and tested the marijuana. Ms. Smith testified that she recognized the two bags as exhibits marked by Mildred Brinson after being received by her from Frank Davis. Those bags had been put in Ms. Smith’s evidence locker where they remained until she performed her analysis. Ms. Smith testified that she weighed the substances, tested them, and then placed them in the evidence vault where they remained until the time of trial. The weight of the evidence weighed by Ms. Smith was 1389 grams, approximately a pound less than the evidence which had been weighed by Sheriff Banks in the Leflore County Sheriff’s office earlier.

When faced with the sort of chain of custody objection made here, the trial court should inquire whether there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence. Grady v. State, 274 So.2d 141, 143 (Miss.1973). Matters regarding the chain of custody of evidence are largely left to the discretion of the trial judge and “unless this judicial discretion has been so abused as to be prejudicial to the Defendant, this Court will not reverse the ruling of the trial court”. Wright v. State, 236 So.2d 408, 409 (Miss. 1970); Grady v. State, supra, 274 So.2d at 143; and Nix v. State, 276 So.2d 652, 653 (Miss.1973).

In this case the only suggestion that the evidence may have been tampered with is the difference in weight of approximately one pound between the amount of substance weighed by Sheriff Banks and that weighed at the Crime Lab. It appears, however, that Sheriff Banks weighed the substances in the sacks, while at the Crime Lab the substance only was weighed. There is no evidence regarding the accuracy of the scales used by the sheriff.

In support of his argument that there has been a failure to establish chain of custody, Morris relies solely upon guesswork, speculation and conjecture. The substance of the credible evidence is that the substances and bags introduced at trial were the ones seized from Morris on August 27, 1981. The trial court was wholly correct in overruling defense objections on this point.

VI.

All other errors assigned are either invited, unpreserved by timely objection, or are sufficiently undeveloped in the record to permit intelligible consideration. In any event, we do not deem it necessary or appropriate to pass upon them.

For the reasons stated above, Defendant Morris’ sentence is vacated, his conviction is reversed, and this case is remanded to the Circuit Court for a new trial. The Defendant, of course, now has the statement he was entitled to under Rule 4.06. We trust the case is therefore in a posture so that final disposition may be accomplished with dispatch.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

WALKER and BROOM, P.JJ., specially concur.

WALKER, Presiding Justice,

specially concurring:

I concur in the result reached but for a different reason.

The majority opinion holds that this case is being reversed because the state “was obliged to produce the statement [under Rule 4.06(2)] but didn’t.” I would not reverse for that reason alone but would reverse because the state failed to produce the statement pursuant to a request under Rule 4.06(2), and the appellant has demonstrated that he was prejudiced thereby. “The underlying question to be decided on review of discovery nondisclosure in criminal cases is whether any prejudice befell appellant as a result of the actions and rulings of the trial court.” Turner v. State, 415 So.2d 689 (Miss.1982). See also: Gallion v. State, 396 So.2d 621 (Miss.1981); Lee v. State, 383 So.2d 821 (Miss.1980); Johnson v. State, 346 So.2d 927 (Miss.1977).

Prior to trial, defense counsel requested production of statements made by the defendant that were in possession of the state, pursuant to Rule 4.06(2) of the Uniform Criminal Rules of Circuit Court Practice. The state, through oversight, i.e., at the time the state answered the request for production, it was not aware that this particular statement was related to the charges in this case. This is understandable because only one page out of a twenty-nine page statement pertained to the charges in this case. However, the failure of the state to produce the statement, through oversight or otherwise, prejudiced the defendant as pointed out by the majority opinion where it is said:

We reverse here because the State was obliged to produce the statement but didn’t, not because Morris was prejudiced. A review of the obvious prejudice in this case, ... makes clear the value of the rule and the importance of enforcement.
First, we find that defense counsel was literally “sandbagged” by Sheriff Banks via this statement. Compare Jackson v. State, 426 So.2d 405, 407 (Miss.1983).
On the evening of August 27, 1981, Sheriff Banks was inquiring about the marijuana Morris had brought into the Leflore County area.
“Q. Well, how much did you bring back here to Walter? How much did you and Walter bring in here? This is not going against you, I’d just like to know how much you and Walter brought back in here. [Emphasis added],
A. 210 pounds. 87 and 123.”
Having received assurances that the information would not be used against him, Morris thus told Sheriff Banks that he brought 210 pounds of marijuana into the area.
As the trial commenced, defense counsel was unaware of the transcribed statement and was certainly unaware of this particular question and answer found on page 18.
As a part of the State’s case in chief, Sheriff Banks was called as a witness. On cross-examination defense counsel began pursuing the defense theory on the facts, that the bags of marijuana belonged to someone else and had been put in the truck by someone else. The following colloquy took place:
“Q. All right. Did Howard Morris not indicate to you that the sack was from Mr. Baker’s house that he didn’t know what was in it?
A. You don’t want me to tell you what Howard indicated to me.
Q. Might as well; just get it all out.
A. Howard [Morris, the defendant] indicated to me that he came into town with two hundred pounds of marijuana.”
There are, of course, many reasons why the answer was objectionable. It was wholly unresponsive to the question. It gave evidence of criminal activity for which Morris was not on trial. What is important for present purposes is that this was information Morris gave Sheriff Banks after having been assured by Banks that “this is not going against you”. If defense counsel had had the statement, he would have known this. Suffice it to say that the prejudice to Morris here was enormous.

The appellant was prejudiced and he demonstrated that prejudice in his brief. For that reason I would reverse and remand for a new trial.

I do not subscribe to the theory that a defendant is entitled to production of evidence solely for the purpose of plea bargaining. That statement in the majority opinion is not supported by any authority. If we so hold, it will open the door to claims by prisoners on petitions for writ of error coram nobis, who heretofore entered pleas of guilty that their cases should be reopened because of the state’s failure to fully disclose information in its possession to them and that if they had had such information they would have held out for a more favorable sentence. I fully agree that disclosure is required so that a defendant may prepare for trial of his case but I would not extend the rule further than that as a matter of right to include plea bargaining.

I also do not subscribe to the statement in the majority opinion that Rule 4.06(2) requires production of every statement made by a defendant, “Whether it described Morris’ understanding of Einstein’s theory of general relativity or his prediction as to whether the Yankees would win the pennant, any such statement was discoverable.” In my opinion, the state is only required to produce statements and evidence that would have a bearing on the charges made against an accused in a particular case. Failure of the state to produce might well result in reversal if the Court, on appeal, was of the opinion that a statement was relevant and pertinent even though the prosecution had thought otherwise.

I have no doubt whatsoever what this Court would hold if the only alleged error on this appeal was that Morris was not supplied with a statement concerning his understanding of Einstein’s theory of general relativity, if it were not pertinent to his defense or the charges made against him. I confidently predict we would affirm the conviction on the grounds that the defendant was not prejudiced.

BROOM, P.J., joins this specially concurring opinion.

      . See Miranda v. Arizona, 384 U.S. 436, 444-445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-707 (1966).

      . Even in the absence of a formal motion for discovery, defense counsel is entitled to production of such statements under Rule 4.06.

      . All of this raises a very serious question of voluntariness. Ordinarily the effect of Miranda warnings and an accompanying waiver of rights is wholly negated when law enforcement officers ask an incriminating question and, before the answer, promise the accused “this is not going against you".

      . There is another reason for resolving any doubt about whether a request was made here in favor of Morris. Rule 4.06 may be ambiguous on the question of whether the six types of evidence enumerated in the rule must be disclosed automatically to each defendant or to his attorney, or whether a request must be made.
      We are confident that English grammar teachers would unanimously conclude that the language “the prosecution shall disclose...” at the outset of the rule makes disclosure of the existence of the statement mandatory and self-executing. The phrase “upon request” is placed in the sentence so that it refers to the defendant’s right “to inspect, copy, test, and photograph”, not the prosecution’s duty to disclose. Grammatically, the first sentence of Rule 4.06 makes disclosure of the existence of the statement (or any of the other items listed in subsections (1) through (6) automatic, with the opportunity to inspect, copy, test and photograph available to the defendant only upon request.
      Still we are confident that the rule has generally been understood to require either an order or a request. As we make clear below, where no discovery order has been entered, a defendant must make a written request before the prosecution becomes obligated to make discovery.

      . The rule in pertinent part provides as follows:
      The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:
      (1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
      (2) Copy of any recorded statement of the defendants to any law enforcement officer;
      (3) Copy of the criminal record of the defendant, if proposed to be used to impeach;
      (4) Copy of crime lab reports or report or any tests made;
      (5) Exhibit any physical evidence and photos to be offered in evidence; and
      (6) Copy of any exculpatory material concerning defendant.
      Subsections (3) through (6) were added to the rule by amendment effective October 26, 1982. Rule 4.06(2), which controls this case, has not been amended. What we say in this Section IV of this opinion applies to the amended Rule 4.06.

      . We are aware from a review of the records in other cases of at least one circuit court district in which the circuit judges, at the beginning of .each term, sua sponte enter blanket discovery orders applicable to all criminal cases. Such an approach dispenses with the necessity of either a formal motion or an informal request for discovery. It has the obvious effect of eliminating needless bickering about discovery matters. It provides for a more effective processing of a heavy criminal docket. It is certainly consistent with the spirit and scope of Rule 4.06.


source: Caselaw Access Project

author: DAN M. LEE, Justice,

license: Public Domain

text:
    Vincent CURLEE v. STATE of Mississippi.
    No. 54322.
    Supreme Court of Mississippi.
    Sept. 14, 1983.
    Rebecca Coleman Phipps, Coleman & Phipps, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Alcorn County wherein the appellant, Vincent Curlee, attempted to represent himself, was furnished assistance of counsel and was found guilty of kidnapping, armed robbery and simple assault. Curlee was sentenced to two consecutive life sentences and twenty years. We affirm.

Curlee was charged with abducting Mrs. Rosa Lee Lawson from a shopping center parking lot in Alcorn County, Mississippi on December 26,1981. Mrs. Lawson’s testimony was that when she returned to her car from shopping, Curlee got into the back seat, pulled a gun on her and told her to drive him to the city park. Once at the park he began to assault her and ordered that she surrender her money, watch and rings. Curlee then demanded that Mrs. Lawson remove her clothes, which she refused to do. Upon her refusal to undress, Curlee directed her to drive him to the city cemetery. Curlee got out of the car at the cemetery and Mrs. Lawson drove by her home and then to the city police department. The police arrested Curlee a short time later that evening. In the house where he was arrested, two rings and a small handgun were recovered. Mrs. Lawson subsequently identified Curlee as the assailant, and the rings, as the ones which he had taken from her. Curlee later admitted the entire incident, and signed a written confession.

On May 3,1982, the Alcorn County Grand Jury returned an indictment against Curlee charging him with kidnapping, aggravated assault and armed robbery. Curlee filed an affidavit of indigency and was provided counsel on May 4, 1982. On the same day through his appointed counsel, the Hon. Phil Hinton, Curlee filed a waiver of arraignment and entry of a plea of not guilty. The record reflects that two days later, on May 6, 1982, a proceeding was had in the circuit court wherein it was determined that Curlee would be allowed to proceed pro se, although court-appointed counsel would remain at the counsel table with him throughout the trial. That proceeding began as an attempt by Mr. Hinton to withdraw a plea of not guilty and enter a plea of guilty. The judge began to question Curlee on the voluntariness of the guilty plea when Curlee stated he would enter a plea of “no-contendory”. There was then a conference between Curlee and Hinton, after which Hinton requested that they proceed with the change of plea. Thereupon, the judge began to repeat his questioning concerning the voluntariness of the plea. Curlee responded by asking that Hinton be “removed from my case for insufficient counsel.” There was no further attempt to change the plea and a special venire was then drawn.

Following the drawing of the special ve-nire, the judge began to question Curlee concerning his request that Hinton be removed as counsel. Curlee replied that he did not want a lawyer but instead wished to have Jimmie Kimbrell, a non-lawyer and fellow inmate awaiting trial, appointed as “legal adviser.” The judge denied Curlee’s request to be advised by Kimbrell and continued questioning him concerning his ability to represent himself. The judge asked Curlee about his age, education, employment, training, and experience with the legal system. Upon the completion of the questioning the judge ruled that Curlee would be allowed to represent himself but the judge also ordered that Mr. Hinton remain at the counsel table with Curlee throughout the course of the trial. This was done so that Curlee might have available the professional advice of an attorney should he decide to avail himself of it and Hinton did submit two jury instructions on Curlee’s behalf. At the close of the trial the jury found Curlee guilty and the judge sentenced him to two life sentences and a twenty year sentence to run consecutively. Curlee now appeals and assigns as error the trial court’s allowing him to proceed pro se.

This case is analogous to Matthews v. State, 394 So.2d 304 (Miss.1981), wherein this Court said:

An accused could place the trial judge in a difficult situation by insisting on a pro se trial, and, upon conviction, claim that he/she did not have the benefit of counsel and did not knowingly waive counsel. Again, if the court refused to permit an accused to represent himself/herself, and required him/her to have counsel present the case, the accused could contend that he was denied his/her constitutional right in not being permitted to present his/her defense pro se. In such delicate situations, the question of counsel waiver must be determined on the facts of each case. In the case sub judice, the attorneys appointed for the appellants were required to remain in the courtroom within a few feet of the appellants during the four days of trial and were present, ready, willing and able to advise, counsel and assist the appellants. In fact, Matthews did call upon her appointed attorney at times for advice. We are of the opinion that the trial judge who observed and talked with Matthews prior to trial and for four days during the trial, was in the best position to know whether or not she executed a knowledgeable waiver of counsel and was mentally competent to do so and that he did not err in overruling the motion for a new trial.

394 So.2d at 311.

In the case sub judice, as in Matthews, the trial judge ordered that an experienced attorney remain with the defendant throughout the course of the trial. Curlee had every opportunity to avail himself of lawyer Hinton’s skills and services. Indeed Hinton submitted the only jury instructions offered by the defense. The trial judge was in the best position to determine whether Curlee had made a knowing and intelligent waiver of his right to counsel. Because the record does not reflect a clear abuse of discretion on the part of the trial judge and indeed shows his wisdom in ordering Hinton to remain at Curlee’s side, we affirm.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


author: ROY NOBLE LEE, Justice,

text:
    Robert Charles CAMPBELL v. STATE of Mississippi.
    No. 53818.
    Supreme Court of Mississippi.
    Aug. 3, 1983.
    Rehearing Denied Sept. 21, 1983.
    Mack Brabham, McComb, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Robert Charles Campbell was indicted, tried and convicted in the Circuit Court of Pike County, Honorable Joe N. Pigott, presiding, on a charge of murder and was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns three errors in the trial below:

I. The lower court erred in holding that the failure of the State to preserve fingerprints of the deceased and remove fingerprints from a .25-caliber automatic pistol found at the scene of the crime constituted an illegal suppression of possible exculpatory evidence.
II. The lower court erred in failing to sustain appellant’s motion in limine to prohibit the State from arguing that the .25-caliber automatic pistol was “planted” near the deceased.
III. The lower court erred in stating before the jury that it made no difference if the deceased had an atomic bomb in his pocket.

The evidence for the State reflects that around 12:00 a.m. on September 26, 1981, David Allen, the deceased, and Robert Charles Campbell, appellant, were at the Bird Cage Lounge in McComb, Mississippi. An argument ensued between them when Allen stepped on appellant’s foot. A short while later, appellant approached Allen outside of the lounge, and renewed the conversation concerning the incident inside the lounge, whereupon Allen told him “to go and play” somewhere else.

Four witnesses testified substantially to the same facts: that appellant left in his truck, returned in approximately fifteen minutes, and walked over close to Allen, who was sitting on a black and white automobile with his arms folded in his lap; that they were within a few feet of Allen when the shooting occurred; that the area was well lighted and they could see what happened; that Allen did not have a gun or weapon in his hand; that appellant threatened Allen, pulled a .22-caliber pistol and shot him four or five times; that Allen fell to the ground and appellant began kicking him and telling him that he was going to kill him. Appellant left the scene after the shooting and went home where he was arrested a short while later for murder. Dr. Lamar Burrow testified that he examined Allen’s body after the shooting and that Allen had been shot four times, once in the right hip, and three times in the back. Two of the bullets entered the chest cavity and one struck his heart.

Detective Lieutenant Ken Foil of the McComb Police Department arrived shortly after Officer Boutwell. He also examined the body and looked around it for a weapon and items of evidence and there were none. Detective Foil left the scene for appellant’s home and arrested him for murder.

Officer Boutwell went to a telephone and called for an ambulance. After a few minutes, he returned to the body and then found a .25-caliber automatic pistol seven or eight inches from the feet of the deceased. It was a dark, dull color and not shiny.

Appellant testified that Allen threatened to kill him inside the lounge and pointed a shiny pistol at him; that on the outside of the lounge, Allen had a shiny pistol in his hands and threatened to kill him; and that appellant shot Allen in self-defense. A chrome .22-caliber Derringer was found in Allen’s shirt pocket by Dr. Lamar Burrow, when he examined the body.

I.

Appellant contends that the State failed to preserve fingerprints from Allen and failed to remove fingerprints from the .25-caliber automatic pistol found at the feet of the deceased, and that such failure amounted to an illegal suppression of possible exculpatory evidence in violation of his constitutional rights. Appellant cites numerous cases, including Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

In addressing this question, we again refer to the facts established by four eyewitnesses at the time of the shooting. The four witnesses positively testified that when appellant shot Allen, the latter had no weapon in his hands, and made no movement toward appellant, who shot him four or five times.

Officer Boutwell was the first officer to the body and scene. He first examined the body and, even though the area was well lighted by three lights, which included two street lights, used his police flashlight to examine the ground all around the body, and positively testified that there was no gun near the body. Detective Rowland testified to the same facts. After he went to arrest Campbell, Officer Boutwell left the scene to call for an ambulance, and, upon returning a few moments later, immediately saw the .25-caliber automatic pistol seven or eight inches from the deceased’s feet. Officer Boutwell picked up the pistol by the trigger guard and dropped it in an evidence bag for preservation. The McComb Police Department wa3 not qualified to process the gun for fingerprints and it was never forwarded to a crime laboratory for that purpose. No fingerprints were taken from the hands of the deceased.

The appellant did not request the court to order production of the gun for fingerprint examination, or to require the police department to have the weapon processed for same. Everything that the appellant requested of the court was granted in the way of disclosure and discovery. We agree with the State that there was no duty on its part to search out and discover any and all possible exculpatory evidence, particularly upon the facts of this case.

In Lewis v. United States, 393 A.2d 109 (D.C.App.1978), the Court said:

The Brady principle does not imply a prosecutor’s duty to investigate — and come to know — information which the defendant would like to have but the government does not possess. See, e.g., United States v. Beaver, 524 F.2d 963, 966 (5th Cir.1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1498, 47 L.Ed.2d 756 (1976) (“Brady clearly does not impose an affirmative duty upon the government to take action to discover information which it does not possess”); Levin v. Katzen-bach, 124 U.S.App.D.C. 156, 162, 363 F.2d 287, 291 (1966) (“[W]e do not suggest that the government is required to search for evidence favorable to the accused .... ”). [393 A.2d at 115-116].

See also State v. Emery, 304 A.2d 908 (Me.1973); Peoples v. Hooker, 423 F.2d 960 (9th Cir.1970); People v. Baber, 31 Mich.App. 106, 187 N.W.2d 508 (Mich.App.1971); Johnston v. State, 376 So.2d 1343 (Miss.1979); and Moore v. State, 374 So.2d 821 (Miss.1979).

We are of the opinion that no reversible error occurred under Assignment I.

II.

The appellant next argues that the lower court committed reversible error in failing to sustain his motion in limine to require that the State refrain from arguing the .25-caliber automatic was “planted” near the deceased by some third person.

The answer to this assignment is that attorneys are permitted wide latitude in arguing their respective positions and theories to the jury, if they follow facts and inferences flowing from the record. Pierce v. State, 289 So.2d 901 (Miss.1974). Under the facts stated hereinabove, there was an inference, which the prosecuting attorney could argue, that, since the gun was not at the feet of the deceased when Officer Bout-well and Detective Rowland examined the area around it, someone else must have placed the gun there after the officers left. Likewise, the appellant had the right to argue his position and theory, from his testimony and the inferences therefrom, as to how and why the gun was there.

We are of the opinion there is no merit in this contention.

III.

Appellant last contends that the court committed prejudicial error when it made reference to the fact that “it made no difference if the deceased had an atomic bomb in his pocket.” [See Appendix]

No exception or objection was made at trial to the statement of the court, and the question cannot be raised for the first time on appeal here. Williamson v. State, 330 So.2d 272 (Miss.1976); Stringer v. State, 279 So.2d 156 (Miss.1973). Furthermore, we are of the opinion that, if such comments were error, they constituted harmless error.

There being no reversible error in the record, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

APPENDIX

BY MR. BRABHAM:

Q. Okay. Now, it would be fair to say that there are different type cartridges that go into a .22 caliber weapon, would it not?

A. Yes, sir, there is.

Q. Okay. There’s a .22 short, true?

A. Yes, sir.

Q. A .22 long?

A. Yes, sir.

Q. Okay.

BY MR. LAMPTON:

Excuse me, Your Honor, I’m going to object. I don’t see the relevancy of this line of testimony.

BY THE COURT:

What is the relevancy of it, Mr. Brab-ham?

BY MR. BRABHAM:

Your Honor, I am attempting to show, if the Court will bear with me, the type cartridges that were found in the .22 caliber Derringer, were some of the most high-powered cartridges that you could find in a .22 caliber weapon.

BY MR. LAMPTON:

I will stipulate to that.

BY THE COURT:

Were they fired?

BY MR. BRABHAM:

No, sir. They were not fired.

BY THE COURT:

I see. Well, why would it be so relevant?

BY MR. BRABHAM:

Your Honor, that gun was found on the deceased in his right front pocket.

BY THE COURT:

I can understand that, but if he had an atomic bomb in his pocket, would that make any difference? What I’m asking you is: what relevancy does it have?

BY MR. BRABHAM:

Well, I think it’s highly relevant to understand the type, at least to understand the nature of the rounds that were found in the gun, Your Honor, that was found on the deceased.

BY THE COURT:

Well, there has already been testimony that there was a Derringer containing 2 cartridges, .22 caliber, and that’s been introduced as Exhibit S-3 and of course, you can question as to that, but I don’t see the relevancy of your visit to Sams Sport Shop and getting a box, and—

BY MR. BRABHAM:

Well, Your Honor, let me ask you this: will the officer stipulate that the box that is contained in front of him is a box that the 2 cartridges that were found in the .22 caliber Derringer were the same make and brand and would have come from a box similar to that?

BY MR. HORN:

Objection, Your Honor. It is also irrelevant.

BY THE COURT:

I sustain the objection. I don’t see— what difference would it make the box that it came in?


text:
    Willie NASH v. STATE of Mississippi.
    No. 54390.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Rehearing Denied Sept. 21, 1983.
    William J. Johnson, Clinton, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    Clinton JONES v. STATE of Mississippi.
    No. 53855.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Rehearing Denied Sept. 21, 1983.
    Carroll Rhodes, Hazlehurst, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


author: ROBERTSON, Justice,

text:
    The PEOPLES BANK AND TRUST COMPANY and Bank of Mississippi v. L. & T. DEVELOPERS, INC., Joe L. Arick, D/B/A A. & H. Electrical and Refrigeration; and the Wickes Corporation.
    No. 54171.
    Supreme Court of Mississippi.
    Aug. 17, 1983.

      Riley & Weir, James Patrick Caldwell, Mitchell, Eskridge, Voge, Clayton & Beasley, Stephen M. Corban, Tupelo, for appellants.
    Robert L. Lancaster, Columbus, Cama-than & Malski, John M. Creekmore, Tupelo, Tubb, Stevens & Morrison, J. Joshua Stevens, Jr., West Point, for appellees.
    Before PATTERSON, C.J., and ROY NOBLE LEE and ROBERTSON, JJ.
   ON MOTION FOR ASSESSMENT OF STATUTORY DAMAGES

ROBERTSON, Justice,

for the Court:

I.

On April 12, 1982, the Chancery Court of Clay County, Mississippi, rendered a final decree the net effect of which was the recognition of perfected liens or security interests in and to one or more of three tracts of land in Clay County, the priorities and amounts of which are as follows:

TRACT NO. I

(1) (a) Joe L. Ariek, d/b/a A & H Electrical and Refrigeration $ 3,200.00

(b) The Wickes Corporation $ 5,030.89

(2) L & T Developers, Inc. $ 8,000.00

(3) Bank of Mississippi $32,000.00

TRACT NO. II

(1) The Wickes Corporation $ 2,387.77

(2) L & T Developers, Inc. $ 8,000.00

(3) Peoples Bank & Trust Company $31,845.00

TRACT NO. Ill

(1) L & T Developers $ 8,000.00

(2) Peoples Bank and Trust Company $31,605.00

The Chancery Court’s final decree further provided, inter alia, as follows:

That Peoples Bank & Trust Company and Bank of Mississippi are granted the option to within thirty (30) days of the date of this decree, to pay said prior liens and all costs herein. That if said option is not exercised, said tracts shall be sold by judicial sales in accordance with the statutes in that regard made, and the proceeds of said sales shall be applied first to the payment of all court costs and then in accordance with the hereinabove ordered priority of liens.

The Chancery Court’s decree may fairly be regarded as “a judgment or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or establish a lien or charge or claim upon or some interest in property” within the meaning of Miss.Code Ann. § 11-3-23 (Supp.1982).

On June 1, 1983, the Court released its opinion affirming the decree of the Chancery Court. Peoples Bank and Trust Company, et al., v. L & T. Developers, Inc., et al., 434 So.2d 699 (Miss.1983).

II.

L & T Developers, Inc., one of the Appel-lees herein and also a Cross-Appellant, has now filed a Motion to Correct Judgment by Assessment of Statutory Damages. In effect, L & T’s motion seeks the addition of 15 percent to the amount of its liens recognized in the final decree of the Chancery Court of Clay County, L & T relies upon rights claimed under the Mississippi mandatory damages statute, Miss.Code Ann. § 11-3-23 (Supp.1982).

The decree of the Chancery Court, affirmed here, recognizes a perfected security interest or lien in L & T Developers, Inc. (a) in the amount of $8,000 against Tract No. I, (b) in the amount of $8,000 against Tract No. III. The decree further provides that the property may be sold to pay the lien.

Bank of Mississippi was the Appellant with respect to Tract No. I only. On appeal it challenged L & T’s $8,000 lien against the property. The bank argued:

“L & T Developers’ subsequent and junior lien, therefore, was extinguished by the “first” deed of trust of Bank of Mississippi, and as such, L & T Developers must look to the proceeds of the foreclosure sale. Since the proceeds figure was insufficient to satisfy the indebtedness to Bank of Mississippi, secured by the first deed of trust, L & T Developers’ lien is extinguished by the foreclosure and should be cancelled of record.” See Brief of Appellant, Bank of Mississippi, filed October 6, 1983, page 30.

The other Appellant, Peoples Bank and Trust Company, challenged only priority, to-wit: Peoples Bank’s first assignment of error was

“The Trial Court erred in holding that the deed of trust held by L & T Developers, Inc. was prior to the deeds of trust held by the Peoples Bank and Trust Company.”

Peoples Bank argued with respect to Tract No. II that its $31,845 lien had priority over L & T’s $8,000 lien and that with respect to Tract No. Ill its $31,605 lien had priority over L & T’s $8,000 lien.

III.

A.

One of Section 11-3-23’s requisites for award of the 15 percent damages is that “the only matter complained of on the appeal is the decree as to some particular property or claim on it”. We find this requisite to have been met.

As indicated above, one of the Appellants, Bank of Mississippi, contested the validity of L & T’s lien. The other Appellant, Peoples Bank, challenged only priority. Regardless of differences in legal theory between the two Appellants, both appeals presented a dispute regarding these tracts of land. If the two Appellants had been successful on their appeal, the net practical effect would have been that L & T would have completely lost its interest in these three tracts of land.

Under the theory advanced by Bank of Mississippi, L & T’s lien would have been “cleaned off” by a foreclosure sale. Under Peoples Bank’s theory, it was entitled to priority over L & T. Under Peoples Bank’s theory, it was entitled to priority over L & T. Had either theory prevailed, it is clear that L & T Developers would have walked away from this litigation empty handed. Under these facts and circumstances, we hold that, within the meaning of Section 11-3-23, the only matter of substance complained of on this appeal was the decree of the Chancery Court as to the three tracts of land and the claims to them.

B.

The next point we consider in opposition to the Motion for Assessment of Statutory Damages is that L & T Developers, Inc. was not wholly successful on this appeal. First, it is noted that L & T was a cross-appellant and that its cross-appeal was denied. Second, it is urged that, at least with respect to Tract Nos. I and II, the Chancellor’s decree and this Court’s affirmance granted a first priority to the materialmen and construction lienors, Arick and Wickes, with L & T Developers, Inc. receiving only a second priority.

1.

The first point is answered authoritatively in Housing Authority of City of Gulfport v. Barbee, 283 So.2d 591 (Miss.1973). In the Barbee case, the appellee, J.G. Barbee, III, had taken a cross-appeal. This Court affirmed on direct and cross-appeal. Housing Authority of City of Gulfport v. Barbee, 279 So.2d 604 (Miss.1973). In other words, Barbee was unsuccessful on his cross-appeal. This Court held, nevertheless, that Barbee was entitled to an assessment of statutory damages under the precursor of Section 11-3-23. In assessing the statutory damages, the Court stated:

Even though the Housing Authority and Barbee both were dissatisfied with the $20,000 judgment, the Housing Authority first took advantage of the appellate process and initiated an appeal. Bar-bee later cross-appealed. The judgment of the court below was affirmed without change, 279 So.2d 604; this case fits squarely within the terms of the statute. The statute provides: "... the Supreme Court shall render judgment against the appellant for damages ...” We must comply with the mandate of the law.
The litigant who first initiates an appeal was construed by us in Pearce v. Ford Motor Company, 235 So.2d 281 (Miss.1970) to be the appellant referred to in Section 1971 against whom damages are to be assessed upon affirmance without change of the lower court’s judgment. 283 So.2d at 592.

Bank of Mississippi with respect to Tract No. I and Peoples Bank and Trust Company with respect to Tract Nos. II and III are the litigants who first initiated this appeal. They are subject to assessment of statutory damages under Section 11-3-23. The fact that L & T took a cross-appeal which was unsuccessful is irrelevant.

2.

The next question presented is whether the fact that L & T was awarded by the Chancellor a second priority, which was affirmed here, instead of a first priority, precludes application of the statutory damages statute. We hold that it does not.

In the first place, the statute provides that the 15 percent damages shall be assessed “in case the judgment or decree of the court below be affirmed”. That occurred here. What — and all — L & T won in the Chancery Court has been affirmed here. What — and all — L & T won in the Chancery Court was under great attack by the two Appellants, Bank of Mississippi and Peoples Bank & Trust Company, on this appeal. That appeal was denied in its entirety.

We are not unaware that our prior cases have heretofore cautioned that Section 11-3-23 is highly penal and ought be construed against the claim of the moving appellee. McKendrick v. Lyle Cushion Company, 234 Miss. 325, 340, 106 So.2d 509, 511 (1958); Lowicki v. Lowicki, 429 So.2d 917, 919 (Miss.1983). Though this admonition be well in mind, no linguistic expertise is necessary to see that this case fits well within the plain meaning of Section 11-3-23.

C.

Bank of Mississippi points out that statutory damages may not be awarded unless the affirmance is unconditional. The Bank argues that the alternatives given the banks of payment of L & T’s lien or sale of the property to satisfy L & T’s claim run afoul of this rule.

Our cases are clear that affirmance must indeed be unconditional before statutory damages may be assessed. Shipman v. Lovelace, 215 Miss. 141, 144-146, 60 So.2d 559, 560-561 (1952); Comment, Mandatory Assessment of Damages Against An Unsuccessful Appellant: A Constitutional Analysis, 53 Miss.L.J. 281, 286 (1983). The conditions noted here were in the Chancery Court’s final decree rendered April 12,1982. That arguably “conditional” final decree was unconditionally affirmed by this Court on June 1, 1982.

In summary, we have before us an appeal to this Court from a final decree of the type specified in Section 11-3-23 which on June 1,1983, we affirmed. Where these requisites have been met, the award of statutory damages is mandatory, not discretionary. Chrismond v. Chrismond, 213 Miss. 189, 193, 56 So.2d 482, 484 (1952); Hart v. Catoe, 393 So.2d 1346, 1347 (Miss.1981); Lowicki v. Lowicki, 429 So.2d 917, 919 (Miss.1983).

We have carefully reviewed a very thoughtful and recently published comment subjecting our mandatory penalty statute to critical analysis under the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Comment, Mandatory Assessment of Damages Against An Unsuccessful Appellant: A Constitutional Analysis, 53 Miss.L.J. 281, 289-302 (1983). We have previously rejected an equal protection challenge to the statute. Wallace v. Jones, 360 So.2d 932, 934 (Miss.1978). No constitutional challenge is made by either bank here. Thus, we do not consider or pass upon any such potential issues.

IV.

The statute provides that in cases such as this the 15 percent shall be determined as follows:

The damages shall be computed on the value of the property or the interest in it, if the value of the property or the interest in it be less than the judgment or decree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree; ...

Based on the record before us it appears most probable that the value of each tract of land is sufficient to discharge the claims of the materialmen and construction lienors and also discharge in full the $8,000 liens of L & T Developers. Appellants, however, argue strenuously that the value of the land is not so sufficient. Because a substantial amount of time has elapsed since the trial of this case, we have no way of knowing with any reasonable degree of certainty just what the value of these three tracts of land may be today. Before the above quoted language from Section 11-3-23 can be applied, value must be established.

Accordingly, we hold that L & T Developers, Inc. is entitled to 15 percent statutory damages computed according to Section 11-3-23. We remand the case to the Chancery Court for a factual determination of the value of each of the three tracts of land at this time. See McBride v. Burgin, 143 Miss. 596, 596-597, 108 So. 811 (1926); Hart v. Catoe, 393 So.2d 1346, 1347 (Miss.1981).

The judgment of the Court on the instant motion is that L & T Developers, Inc. shall have and recover of Bank of Mississippi and its sureties an amount equal to 15 percent (a) of $8,000.00 (which is $1200.00), or (b) of so much of the present fair market value of Tract No. I and its improvements as exceeds $8230.89, whichever is the lesser. To secure the payment of this amount, L & T shall have á lien against Tract No. I which shall have priority over the lien of the deed of trust held by Bank of Mississippi (but which will remain subordinate to the liens held by Arick and Wickes).

Further, L & T Developers, Inc. shall have and recover of Peoples Bank and Trust Company and its sureties an amount equal to

(1) 15 percent
(a) of $8,000.00 (being $1200.00), or
(b) of so much of the present fair market value of Tract No. II and its improvements as exceeds $2,387.77,
whichever is the lesser;

plus

(2) 15 percent
(a) of $8,000.00 (being $1200.00), or
(b) of the present fair market value of Tract No. Ill,
whichever is the lesser.

To secure the payment of this amount, L & T shall have a lien against Tract Nos. II and III which shall have priority over the lien of the deed of trust held by Peoples Bank and Trust Company (but which will be subordinate to the Wickes lien against Tract No. II).

MOTION FOR AWARD OF STATUTORY DAMAGES SUSTAINED:

CASE REMANDED FOR DETERMINATION OF VALUE OF PROPERTIES.

PATTERSON, C.J., WALKER and BROOM P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PRATHER, J., takes no part.

      . Similar motions for assessment of statutory penalty were filed by materialmen/construction lienors Joe L. Arick, d/b/a A & H Electrical and Refrigeration, and The Wickes Corporation. Those motions were sustained without opinion on July 13, 1983.

      . Miss.Code Ann. § 11-3-23 (Supp.1982) reads as follows:
      In case the judgment or decree of the court below be affirmed, ..., the Supreme Court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%) as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property.... If the judgment or decree ... be a judgment or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or establish a lien or charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it, if the value of the property or interest in it be less than the judgment or decree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree; ....
      A helpful review of the manner in which our mandatory penalty statute has been construed over the years appears in Comment, Mandatory Assessment of Damages Against an Unsuccessful Appellant: A Constitutional Analysis, 53 Miss.L.J. 281, 282-288 (1983).

      . Enforcement of the statute in this case has caused the Court no little concern. In no sense can it be said that the appeal taken by the two banks vis-á-vis L & T was frivolous. Rather, an important question of first impression was raised. See Peoples Bank and Trust Company, et al., vs. L & T Developers, Inc., et al., 434 So.2d 699, 710 (Miss.1983). To be sure, that question was resolved adversely to the banks. Still, it is difficult to ascertain the justice of imposing the penalty upon them for having taken this appeal.
      We are not unaware that Mississippi is only one of two states (the other being Alabama) having a mandatory penalty statute. See Ala. Code § 12-22-72 (1975). Most other states have discretionary statutes. See Comment, Mandatory Assessment of Damages Against an Unsuccessfui Appellant: A Constitutional Analysis, 53 Miss.L.J. 281, 282 fn. 3, 288-289 (1983). Any change in the nature of our statute, of course, must come from the legislature, not from this Court. See Lowicki v. Lowicki, 429 So.2d 917, 920 (Miss.1983).

      . A persuasive argument could be made that value should be determined as of the date of the final decree appealed from. That date here would be April 12, 1982. The argument is that the appellant should not be allowed to escape the sting of the penalty by the fortuity that the property may depreciate in value during a long drawn out appellate process. The statute is silent on the point. We construe it here to refer to present value (a) because of the impracticability of determining with any accuracy value as of an arbitrary prior date such as April 12, 1982, and (b) because more often than not the value of property will, if anything, increase.

      . Peoples Bank has argued that “damages should ... be based on what these tracts would bring at foreclosure”. It makes this argument despite the generally known fact that property sold at foreclosure or distress sale almost never brings its full value. See Central Financial Services, Inc. v. Spears, 425 So.2d 403, 404 fn. 2 (Miss. 1983). The record reflects that Peoples Bank tried “to get away with” $1000 and $500 foreclosure sale bids on Tracts II and II, respectively. Its argument now that actual judicial sales price, rather than fair market value, should be “value” for purposes of the damages computation to be made under Section 11-3-23 is less than persuasive.

      . The figure $8,230.89 has been computed by adding together the amounts of the Arick ($3,200.00) and Wickes ($5,030.89) liens which have been held to have priority over the lien of L & T Developers, Inc.

      . Here we refer to the lien of the Wickes Corporation in the amount of $2,387.77 held to have priority as a lien against Tract No. II over the lien of L & T.


author: PATTERSON, Chief Justice,

text:
    Brenda Joyce FORD v. STATE of Mississippi.
    No. 54366.
    Supreme Court of Mississippi.
    Aug. 24, 1983.
    Moore, Royals & Hartung, Russel D. Moore, III, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., HAWKINS and DAN M. LEE, JJ., and SUGG, Retired Justice.
   PATTERSON, Chief Justice,

for the Court:

Brenda Joyce Ford was indicted in the First District of the Circuit Court of Hinds County for the murder of James Willie Peters. The first trial on this charge ended in a mistrial after the jury failed to return a verdict. This appeal is from the second trial in which Ms. Ford was found guilty of manslaughter and sentenced to twenty years imprisonment. Ford appeals, assigning as error that the lower court abused its discretion in sentencing her to the maximum term allowed by statute because of unduly prejudicial information received from an unidentified juror in the first trial.

On January 31,1982, Ford took a shotgun into Beverly Jones’ apartment, where she believed James Willie Peters and others were using Ford’s daughter as a prostitute and giving her illegal drugs. Three witnesses testified that Ford pointed the gun at Peters and told him she would shoot him if he did not tell her the whereabouts of her daughter Kim. The gun then went off, killing Peters. Ford testified that she had merely been trying to frighten Peters into telling her where her daughter was and that the shooting was accidental.

After the jury found Ford guilty of manslaughter, she told the court that her concern for her daughter had made her emotionally overwrought on the day in question. The judge, having heard Ford and her attorney, made the following statement:

Well, I don’t think there is much question that you were in an agitated state when you went up there and it was probably justified as far as your child having been a run-away and you couldn’t locate her but I agree with the jury that it was a misplaced agitation as far as the source of the agitation and the first jury advised me that it was eleven to one for premeditated murder and one juror advised me that he wouldn’t vote for anything— guilty, not guilty or manslaughter — and I think except for that one fact when you occasionally get a juror who will not vote for — who will not participate — under our laws, that results in a mistrial — you would be standing there with a mandatory life sentence. I think that the jury has shown considerable leniency in reducing the charge to manslaughter. So I sentence you to a term of twenty years in the custody of the Mississippi Department of Corrections.

Adopting the concept that sentencing should be a matter of some judicial discretion, this Court has routinely upheld sentences within statutory limits. Yazzie v. State, 366 So.2d 240 (Miss.1979); Ellis v. State, 326 So.2d 466 (Miss.1976). In Bracy v. State, 396 So.2d 632, 636 (Miss.1981), it is stated, “It has long been the rule in this state that an imposition of a sentence in a criminal proceeding is within the sole discretion of the trial judge and this Court will not set it aside if the sentence is within prescribed statutory limits.”

Since Miss.Code Annotated, § 97-3-25 (1972), authorizes a 20-year term for manslaughter, appellant’s argument would clearly be meritless were it founded only on the premise that the sentence is excessive. However, appellant contends that the sentence was improperly based on prejudicial and unvalidated information from a juror in the first trial. We agree and remand this case for resentencing.

In Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693 (1948), the Supreme Court considered a sentence based on materially untrue assumptions about defendant’s criminal record and stated, “[I]t is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.” Thus Townsend held the foundation for the sentence was improper for two reasons: (1) it consisted of materially false information which (2) defendant had no opportunity to rebut or explain. We are of the opinion the underlying principle of Townsend controls in this case. While the juror’s statement cannot be labeled materially false, neither can it be validated. Further, defendant was not given an opportunity to attempt to refute the juror’s assertion.

It is ironic that had the trial court not disclosed the basis for its imposition of the maximum sentence, this issue would not be before this Court. However, the court clearly founded sentence on an unverified statement which defendant was not allowed to refute; therefore, we remand for resen-tencing consistent with this opinion.

REMANDED FOR RESENTENCING.

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


text:
    CRAWFORD COMMERCIAL CONSTRUCTORS, INC. v. MARINE INDUSTRIAL RESIDENTIAL INSULATION, INC.
    No. 53860.
    Supreme Court of Mississippi.
    Aug. 24, 1983.
    Corlew, Krebs & Hammond, Frank J. Hammond, III, John G. Corlew, Pascagoula, for appellant.
    Harold J. DeMetz, Gulfport, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Marine Industrial Residential Insulation, Inc., (hereinafter MIRI) sued Crawford Commercial Constructors, Inc. (hereinafter Crawford) in the Circuit Court of Jackson County on November 12, 1980. The suit sought payment for a roofing contract performed by MIRI for Crawford. Crawford admitted the existence of the contract and performance by MIRI but refused payment because it believed the roof was improperly installed, so that Crawford will ultimately be required to repair it to satisfy the building’s owner.

Crawford therefore denied that MIRI was entitled to full payment under the subcontract and counterclaimed for a sum alleged to be necessary to repair the roof to proper standards. The counterclaim was denied by MIRI. At the conclusion of the trial, the trial court granted the defendant MIRI a peremptory instruction and a verdict was returned for it in the amount sued for, $20,980.

Aggrieved, Crawford appeals designating several assignments of error. We limit this opinion to the first suggested error as it is dispositive of the suit, in our opinion. It follows, “The Circuit Court erred in granting a peremptory instruction and/or directed verdict for Appellee and instructing the jury to return a verdict in favor of Appellee when the evidence showed that Appellee was in breach of the contractual agreement existing between Appellee and Appellant.”

We initially observe that Crawford was paid in full for the construction of the building by the owner, and that Crawford has not been sued nor required to pay the owner any sums for the alleged defects in the roof’s construction. The above facts were noted by the trial court which led it to grant the peremptory instruction. We agree because it appears to us that Crawford’s claims are conjectural. While it may be true that Crawford in the future will be called upon by the owner to repair the defects, if any, the fact remains that no demands had been made upon Crawford for any defects at the time of this suit.

Under our authorities there must be a present, existent actionable title or interest which must be completed at the time the cause of action is filed. American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598 (1938). A mere inchoate right is not sufficient and neither is a prospective danger of injury. Brooks v. Kelly, 63 Miss. 616, 627 (1886). See also Yates v. Beasley, 133 Miss. 301, 97 So. 676 (1923). In Georgia Pac. Ry. Co. v. Baird, 76 Miss. 521, 24 So. 195, 196 (1898), this Court addressed the issue in the following words, “It is certainly an undis-putable and invariable rule of law that a right of action must be complete when an action therefor is commenced....” See also Brown Brothers & Co. v. The Bank of Mississippi, 31 Miss. 454,459 (1856), wherein it is stated, “we consider it to be the well-settled, general rule, that the facts which constitute the ground of a suit must exist at the time the suit is instituted...”

We therefore conclude the trial court did not err in granting the peremptory instruction because Crawford did not have a present, existing cause of action when the suit was instituted. We therefore do not address the other assignments of error.

AFFIRMED.

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

      . Which was prior to the effective date of the Mississippi Rules of Civil Procedure, January 1, 1982. This opinion, therefore, has no limitation upon or intended construction of any of the rules later adopted on January 1, 1982.


author: WALKER, Presiding Justice,

text:
    Walter Ray SLOANE v. STATE of Mississippi.
    No. 53885.
    Supreme Court of Mississippi.
    Aug. 24, 1983.

      Julie Ann Epps, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, DAN M. LEE and ROBERTSON, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein the appellant, Walter Ray Sloane, was indicted, tried, and convicted of armed robbery. Following conviction he was sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections with twelve years suspended, eighteen to serve. From this conviction and sentence, he appeals. We reverse.

In the evening of February 1, 1981, William Gerald Guthrie, employed by Lancaster Properties, A.J. Realty Company, as apartment manager was at the company’s Bailey Avenue Apartments located at Collier and Bailey Avenues in Jackson, Mississippi, for the purpose of collecting rent. While coming out of one of the upstairs apartments with his money bag, he was approached by a black male who, as he got directly beside Guthrie, hit him in the head with a revolver. The assailant made several threatening remarks and, as the two scuffled, was able to secure Guthrie’s money bag and fled from the scene. According to Guthrie the area was well lit by a series of light bulbs along the apartment balcony and street lights outside the apartment parking lot.

After the police arrived, Guthrie described his assailant as being in his late 20’s, 5'7", 150 pounds, black hair; brown eyes, short afro, and clean shaven.

Sloane was arrested after a positive identification was made from police photographs by Charles Epps, a resident of the apartments and a friend of the appellant. The victim, Guthrie, identified Sloane from a police lineup based upon Sloane’s facial features, body structure and stature, height and body weight.

Following trial, the jury returned its verdict, “We, the jury, find the defendant guilty as charged.”

On appeal the appellant has assigned several errors. However, as this case requires reversal, we find it necessary to address only the issue regarding introduction into evidence of mug shots of the appellant. It is contended that the mug shots indicated appellant had a prior criminal record. The mug shots in question were a full front and a profile shot of the appellant with the inscription “Police Dept. Jackson, Miss.” and identification number “27163.” The mug shots had been taken several years prior to the crime for which appellant was being tried and portrayed a much younger Sloane. The mug shots had no connection with this more recent crime.

It is the general rule that evidence of other crimes perpetrated by the accused are generally inadmissible. Black v. State, 418 So.2d 819 (Miss.1982).

In the recent case of Taylor v. State, 426 So.2d 775 (Miss.1983), the defendant, accused of rape, assigned as error the introduction of mug shots which implied he had a prior criminal record. The photographs were part of a photographic array from which Taylor was identified as the assailant.

We held the introduction of these photographs was not error because the trial judge required any markings that suggested the individuals in the photographs were criminals to be covered or excised.

The photographs in the present case retained enough identifying marks to indicate they came from police files which would cause jurors to suspect the appellant had a criminal record or had been in trouble with the police.

In United States v. Harrington, 490 F.2d 487 (2nd Cir.1973), the Court outlined three prerequisites to the introduction of mug-shot type photographs in order to preclude their introduction from being error:

(1) The Government must have a demonstrable need to introduce the photographs; and

(2) The photographs themselves, if shown to the jury, must not imply that the defendant had a prior criminal record; and

(3) The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs. (490 F.2d at 494).

The photographs in this ease were introduced during direct examination of Detective Knowles who testified that the photographs were used in a picture lineup as a part of her investigation of the robbery and were shown to several witnesses including Mr. Guthrie, the victim, a Mr. and Mrs. Johnson, residents of the apartments, and Mr. Epps. Mr. Epps made a positive identification of Sloane from the pictures. Sloane did not testify in his own behalf.

The introduction of the mug shots violated all three of the three prerequisites set out in Harrington, supra, in that:

(1) The State has not demonstrated any need for the introduction of the photographs and we are unable to find any relevancy for their introduction. Mr. Epps was a witness for the State and made a positive in-court identification of the defendant Sloane. We are at a loss to understand why they were introduced.

(2) The photographs portrayed a much younger Sloane and under each appeared “Police Dept. Jackson, Miss.” and a number “27163” which would make it undeniably clear to the jurors that Sloane had been involved in or was suspected of prior criminal activity.

(3) During the State’s questioning of Detective Knowles it was evident that the photographs were some that had been in the police files prior to Sloane’s arrest for this crime. Therefore, it was obvious they were taken by the police department during the course of earlier suspected criminal activity on the part of Sloane.

We note that it is permissible to use mug shots when necessary to the State’s case or rebuttal that were taken incident to the crime for which the defendant is being tried. However, even then any reference to the police department or identification number indicating the photographs are from police files should be cropped.

Under the circumstances presented by the evidence in this case, we are of the opinion that the introduction into evidence of the mug shots of Sloane constituted reversible error in that they implied that he had a prior criminal record.

For the reasons stated herein, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . However, there are exceptions to this principle. See Gray v. State, 351 So.2d 1342 (Miss.1977).

      . Police photographs or mug shots have been around for well over a half a century and prosecutors have avoided using them as borne out by the fact that Taylor, supra, is the only Mississippi case that we can find where they were introduced into evidence. This case comes on the heels of Taylor. We would point out before the practice becomes widespread, that the use of mug shots except when absolutely necessary, is inviting error.