Howard Mooneyham v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00376-COA
HOWARD MOONEYHAM
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
02/09/2001
HON. JOHN T. KITCHENS
RANKIN COUNTY CIRCUIT COURT
J. EDWARD RAINER
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY:
RICHARD D. MITCHELL
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
COUNT I: POSSESSION, MORE THAN THIRTY GRAMS,
METHAMPHETAMINE, TO SERVE TEN YEARS IN
MDOC IN CAUSE NUMBER 12,190. COUNT II: SALE OF
METHAMPHETAMINE, TO SERVE A TERM OF FIFTEEN
YEARS IN MDOC IN CAUSE NUMBER 12,190, TO RUN
CONSECUTIVELY TO THE SENTENCE IMPOSED IN
CAUSE NUMBER 12,190.
DISPOSITION:
AFFIRMED - 8/27/2002
MOTION FOR REHEARING FILED: 9/9/2002; denied 10/29/2002
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE KING, P.J., LEE, AND IRVING, JJ.
KING, P.J., FOR THE COURT:
¶1. Howard Mooneyham was found guilty in the Circuit Court of Rankin County, Mississippi of the
possession of more than thirty grams of methamphetamine and the sale of methamphetamine. He was
sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections on the
possession charge and a term of fifteen years in the custody of the Mississippi Department of Corrections
on the sale of methamphetamine. The sentences imposed were to run consecutively. Aggrieved by his
conviction, Mooneyham has appealed and raised the following issues which we quote verbatim:
I. The trial court erred in failing to grant a continuance and admitting the testimony of
Officer Roy Dampier and Officer Edward Benton as their status as witnesses was not
disclosed to defendant until less than three days before trial.
II. The trial court erred in receiving into evidence the photographs marked as State's
exhibits S-1, S-2 and S-4.
III. The trial court erred in failing to grant defendant's motion to suppress all evidence
gleaned from the execution of the search warrant as the warrant must fail for want of
probable cause based on the insufficiency of the underlying facts and circumstances on
which the warrant was based.
IV. The trial court erred in failing to grant a mistrial based on the prejudicial comments
made by Officer Edward Benton in the presence of the jury.
V. The defendant's Sixth Amendment right to confront a witness against him was violated
when defendant was not allowed to confront the expert that did the actual analysis of the
substance found in his home.
VI. The trial court erred in failing to give the accomplice cautionary instructions marked D10 and D-11.
VII. The trial court erred in allowing the prosecutor to comment during closing argument
about any fictional "business" that was being operated at defendant's home and the
presence of a park across the street from defendant's home.
VIII. The length of the sentence in this case ensures that defendant will spend the rest of his
natural life in prison and is therefore a life sentence which amounts to cruel and unusual
punishment.
FACTS
¶2. On May 12, 2000, Officer Edward Benton of the Pearl Police Department and a special contract agent
with the Mississippi Bureau of Narcotics assisted Officer Roy Dampier (Pearl Police Department) in an
"undercover buy" from Marcie Bowling. Bowling was subsequently arrested for selling methamphetamine to
the officers. After which, Bowling agreed to make a "controlled buy" of more methamphetamine from her
supplier, Howard Mooneyham.
¶3. In preparation for the "controlled buy," Bowling was taken to the Florence Police Department and
searched to make sure that she did not have any narcotics or money on her at that time. Officer Benton
then put a body wire on Bowling and gave her five one-hundred dollar bills (money from state funds) to
purchase the narcotics. Officer Benton rode with Bowling to a pay phone where she paged Mooneyham.
He called back and the transaction was arranged. Officer Benton lay in the car as Bowling approached
Mooneyham's residence. Other officers were watching Mooneyham's house. Bowling exited the car and
approached Mooneyham who was sitting on his front porch swing. Bowling laid the "marked money"
beside her. Mooneyham picked up the money and gave her a bag, which contained a substance later
determined to be methamphetamine. Bowling returned to the car and gave the bag to Officer Benton, who
transported it to the crime lab the following day.
¶4. After Bowling purchased the substance, the assisting officers placed Mooneyham under arrest for the
sale of a controlled substance. Mooneyham was advised of his Miranda rights and searched. In
Mooneyham's pocket, Officer Benton found the "marked money" which was later confirmed to be the state
funds given to Bowling for the buy (the money was compared with copies made prior to the buy).
¶5. After Mooneyham refused to allow the officers to search his house, Officers Edward Benton and
Timothy Culpepper obtained a search warrant to search Mooneyham's house. The officers discovered
additional amounts of a white substance thought to be methamphetamine in the attic of Mooneyham's house.
¶6. Prior to trial on February 8, 2001, there was a suppression hearing where Mooneyham's attorney
requested that any written or oral statements given by Mooneyham and any physical evidence be excluded
as being obtained in violation of his constitutional rights. After hearing the evidence presented, the trial court
denied this motion. Mooneyham was found guilty of the possession of more than thirty grams of
methamphetamine and guilty of the sale of methamphetamine. He was sentenced to serve consecutive terms
of ten and fifteen years in the custody of the Mississippi Department of Corrections.
ISSUES AND ANALYSIS
STANDARD OF REVIEW
¶7. The applicable standard of review regarding the admissibility of evidence is as follows:
Admissibility of evidence rests within the discretion of the trial court. However, this Court must also
determine whether the trial court employed the proper legal standards in its fact findings governing
evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in
its fact findings, the Court applies a substantially broader standard of review. However, a denial of a
substantial right of the defendant must have been affected by the court's evidentiary ruling.
Furthermore, the trial court's discretion must be exercised within the scope of the Mississippi Rules of
Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to
the accused occurs.
Hayes v. State, 803 So. 2d 473 (¶4) (Miss. Ct. App. 2001).
I.
Did the trial court err in failing to grant a continuance and admitting the testimony of
Officer Roy Dampier and Officer Edward Benton as their status as witnesses was not
disclosed to defendant until less than three days before trial?
¶8. Mooneyham contends that the trial court erred in denying his motion for a continuance based upon the
State's failure to submit its list of witnesses until three days prior to trial. Mooneyham's attorney claims he
did not have enough time to interview the State's witnesses. Mooneyham asserts that the State violated
Uniform Circuit and County Court Rule 9.04(I)(1) by failing to provide the list in a timely manner.
¶9. The decision to grant or deny a continuance is left to the sound discretion of the trial court, and this
Court shall not reverse for the denial of a continuance unless it appears that manifest injustice resulted from
the denial. Buckley v. State, 772 So. 2d 1059 (¶2) (Miss. 2000).
¶10. A review of the transcript reveals that the State had provided offense reports to Mooneyham's
attorney but does not specifically indicate that a witness list was provided at the same time as the reports.
The trial judge stated:
THE COURT: Today is February 8th. It appears to the court that, although
Mr. Rainer didn't have the benefit of the discovery back in June, it appears to the court that the
defendant, I guess, fired his attorney on the day of the plea offer, which I don't think should be held
against the State. It appears to me the State produced discovery in a timely manner. It appears the
State did try to work with Mr. Rainer as far back as January 24th in trying to ascertain additional
discovery for him. So I'm going to deny that motion. I don't see any prejudice in the case against the
defendant. Mr. Sumrall, his initial attorney, had the discovery since June.
....
THE COURT: . . . I think there is just as much a burden on the defense attorneys to try to come and
get the discovery as it is for the prosecutors to give the discovery. So I'm going to overrule your
motion. . .
Mooneyham also claims that the testimony of Officers Roy Dampier and Edward Benton should not have
been admitted because their status as witnesses was not disclosed until three days before trial.
¶11. The State maintains that because it provided the offense reports made by the officers, that this was
sufficient notice of the substance of the officers' testimony. The trial judge determined that the information
was provided in accordance with the discovery rule, but also allowed Mooneyham's attorney time to
interview the officers. Although Mooneyham's attorney interviewed the officers, he stated that he wanted to
make the court aware that he was not agreeing that this interview would cure any error that he may assign
later. In response, the court stated the following:
THE COURT: I want the record to be clear that Mr. Rainer objects to going forward in this matter
because of discovery surprise concerning the statement by Mr. Mooneyham that it was, quote, his
money, when he was arrested. I think under Box, I have made sufficient provisions for Mr. Rainer to
talk to the two witnesses who would be called to testify to the short statement. Therefore, I am not
going to continue the trial. . . .
While the State may have violated the discovery rules, the trial court took corrective action and determined
that the information provided by the officers was not of such grievous harm that it would prejudice
Mooneyham's defense. Williams v. State, 784 So. 2d 230 (¶7) (Miss. Ct. App. 2000). Having reviewed
the testimony, we agree with the trial court on this matter.
II.
Did the trial court err in receiving into evidence the photographs marked as State's exhibits
S-1, S-2 and S-4?
¶12. Mooneyham contends that the trial court erred by allowing photographs marked, as State's exhibits S1, S-2 and S-4, in evidence. Mooneyham's attorney objected to the photographs and stated that the
photographs were not "made known" to him until approximately fifteen minutes before trial. The trial judge
allowed Mooneyham's attorney time to review the photos. S-1 is a picture of the open attic. S-2 is a picture
of the front of Mooneyham's residence. S-4 is a picture of insulation in the attic with a bag of white
substance located inside. These pictures were marked for identification purposes and S-1 and S-2 were
admitted in evidence.
¶13. While Mooneyham's attorney maintains that he was given sufficient time to look at the photographs, he
was not given time to prepare an adequate defense to the photographs. According to Mooneyham, a
continuance was still in order due to the undisclosed evidence. Mooneyham has not suggested to this Court
any defense which was hampered by the lack of a continuance. Walker v. State, 671 So. 2d 581, 592
(Miss. 1995).
¶14. Mooneyham has not shown injury by allowing these photographs to be entered in evidence. Therefore,
we find no error regarding this issue which would warrant a reversal.
III.
Did the trial court err in failing to grant defendant's motion to suppress all evidence gleaned
from the execution of the search warrant as the warrant must fail for want of probable cause
based on the insufficiency of the underlying facts and circumstances on which the warrant
was based?
¶15. Mooneyham contends that the trial court erred in denying his motion to suppress all evidence obtained
through the search warrant. He maintains that the warrant was not valid due to lack of probable cause
based on the insufficiency of the underlying facts and circumstances portion of the warrant.
¶16. In determining whether evidence should be suppressed, a trial court's findings of fact are not disturbed
on appeal absent a finding that the "trial judge applied an incorrect legal standard, committed manifest error,
or made a decision contrary to the overwhelming weight of the evidence." Taylor v. State, 733 So. 2d 251
(¶18) (Miss. 1999).
¶17. The trial judge determined that:
The man of average caution looked at the total circumstances surrounding this particular warrant
issuance, that it would find that probable cause existed. If you look at the underlying facts and
circumstances -- I indicated earlier, I have been involved in search warrant cases before the United
States Supreme Court. I certainly would have written more in the underlying facts and circumstances.
But I'm not out there in the field. These police officers are held to the same standard as the lawyers
and legal scholars who operate within the system. If you look at the underlying facts and
circumstances, the agent tells the judge what's going on. He's right up front with the judge. He tells the
judge that at 104 Briar Hill Road in Florence, they purchased three grams of alleged crystal
methamphetamine. And this is unusual. They tell the judge who they purchased it from, Marcie
Bowling. She's going to be the CI in the next case. They arrested Marcie Bowling. And while talking
to her, she cooperated with officers and allowed audio equipment to be placed on her person. And
she went to a pay phone at the Amoco and called Howard Mooneyham, who said he would sell her
two eight balls of crystal meth. After the phone call was made, Mooneyham was observed. Then the
proof in the case reveals that surveillance agents observed Mooneyham going out to an out building
next to the house. Marcie Bowling left Amoco, went to 120 Pearl Avenue, Richland, Mississippi, and
purchased approximately six grams of alleged methamphetamine from the owner of the residence,
Howard Mooneyham, for $500. Once the transaction took place, officers secured the scene, asked
for consent to search. It was denied, so then the officers applied for the warrant. Any person of
average caution would think, or I think, have to assume that narcotics were being kept at that
premises. So I find that this warrant was issued based upon probable cause. . . .
¶18. The trial court determined that a consideration of the underlying facts and circumstances, showed there
was probable cause. This finding is not inconsistent with the evidence. Roberson v. State, 595 So. 2d
1310, 1317 (Miss. 1992).
IV.
Did the trial court err in failing to grant a mistrial based on the prejudicial comments made
by Officer Edward Benton in the presence of the jury?
¶19. Mooneyham contends that the trial court erred by failing to grant a mistrial based on prejudicial
comments made by Officer Edward Benton during trial. Mooneyham claims that because Officer Benton
was not testifying as, nor was qualified to be an expert, his testimony regarding the substance found at
Mooneyham's residence was impermissible under M.R.E. 701(2) and URCCC 3.12.(3) Mooneyham
maintains that Officer Benton made several references to the substance obtained before the substance was
admitted in evidence. Officer Benton referred to the substance found as "crystal meth," "narcotics" or a
"controlled substance."
¶20. The testimony at trial reveals the following:
MR. RAINER: Your Honor, once again, I'm sorry, but he keeps to [sic] referring to finding a
controlled substance that's not in evidence at this point. It's prejudicial to the defendant. And I request
the court to allow me to make a motion regarding this.
....
THE COURT: All right, make your objection Mr. Rainer.
MR. RAINER: Your Honor, I made my objection. I just move the Court for a mistrial. It's highly
prejudicial to my client for the officer to keep referring to the substance. He can say, I received a
substance, or I found a substance.
....
THE COURT: I don't see any prejudice. But Officer Benton, if you would, refer to anything else you
refer to as a substance that was seized. Because generally that's the way the testimony goes. I seized
a substance. Some of them say it appeared to me to be narcotics, but most people say, I seized a
substance and transported it to the Crime Lab for testing. Police officers can't testify to things being a
controlled substance, only the criminalist from the Crime Lab can. So I'm not going to grant a mistrial,
of course, unless the State doesn't have a Crime Lab analyst, and then I would certainly grant a
mistrial. I'm going to overrule the objection.
....
THE COURT: You may continue. Let me instruct the jury. Ladies and gentlemen, the detective in his
testimony has referred to a substance that he sees as being a controlled substance. Police officers
can't testify to things - - they can testify to things that appear to them to be a controlled substance. But
only a scientist can testify that a certain substance is, in fact, a controlled drug. So I'd ask you to
disregard Detective Benton's testimony regarding any of the substances that he found as being
controlled because he can't testify to that. Can each of you on your oath tell me that you will disregard
his testimony? I have an affirmative nod from each of the jurors. You may continue.
¶21. The applicable standard of review of a trial court's denial of a mistrial is abuse of discretion. Pearson
v. State, 790 So. 2d 879 (¶6) (Miss. Ct. App. 2001). Whether to grant or deny a mistrial is within the
sound discretion of the trial judge. Id. Because the trial judge took appropriate corrective action, we find no
abuse of discretion on this issue.
V.
Whether the defendant's Sixth Amendment right to confront a witness against him was
violated when defendant was not allowed to confront the expert that did the actual analysis
of the substance found in his home.
¶22. Mooneyham contends that his Sixth Amendment right to confront the person who actually performed
the crime lab tests was violated. He asserts that Monica Artis, the quality assurance manager for the
Mississippi Crime Lab, was allowed to testify regarding the chain of custody and the results of the lab tests
that she neither conducted nor supervised.
¶23. In this matter, Ms. Artis was recognized by the court as an expert forensic scientist in substance
identification. Ms. Artis stated that she did not conduct nor supervise the performance of the lab tests, but
that she is the supervisor of the person who conducted the tests.
¶24. The transcript reveals the following:
MR. RAINER: If it please the court, your Honor, this witness has not testified that she received the
evidence from Officer Benton when he delivered it to her. I don't know - - and she hasn't testified
who received it. She hasn't testified that she tested the substances. Therefore, there's [sic] two
problems. There's a chain of custody problem, and there's the requirement that the person, the
scientist that does the test, testify to having done the test to insure the integrity of the test and to insure
that there hasn't been any tampering with it. The witness testified that the analyst that receives it should
be the first person to open it. She obviously was not the analyst that received it. She wasn't the first
person that opened it. So she doesn't have any basis upon which to say that the evidence wasn't
tampered with. There is a question of the integrity of the evidence. And there is a question of whether
or not it could have been tampered with. This witness can't say and hasn't said that it hasn't been
tampered with.
¶25. The court questioned Ms. Artis regarding her role and involvement in this case as follows:
Q. Did you oversee the results or did you oversee the test?
A. What my role in this situation is, is after the analyst has conducted their analysis, all of the
documentation that is generated from the analysis is given to me. I have to verify the results. And it is
my responsibility to look at all the data and see if I would come to the same conclusion as the person
that analyzed it.
Q. You did that in this particular case?
A. Right.
¶26. After this argument was presented to the court, the State cited to Hemphill v. State, 566 So. 2d 207,
208 (Miss. 1990), which says, "[T]he test for the continuous possession [i.e., 'chain of custody'] of
evidence is whether or not there is any indication or reasonable inference of probable tampering with the
evidence or substitution of the evidence." "In such matters, the presumption of regularity supports the official
acts of public officers," and the burden to produce evidence of a broken chain of custody (i.e., tampering) is
on the defendant. Id.
¶27. The State also cited to Gray v. State, 728 So. 2d 36 (¶¶83-85) (Miss. 1998), which allowed DNA
supervisors who qualified as experts to testify regarding test results conducted by others in the lab. The
court in the present matter indicated that the chain of custody appeared to be complete. The court
determined the following:
THE COURT: Okay, DNA area has cleared this up in that supervisory personnel from the FBI lab
and the Relia-Gene lab come and testify concerning the results of technicians who ran the tests. The
supervisors actually never touched the substance. They don't run the tests. People in the lab do. What
you do is , in my opinion, so far, the chain of custody is intact in this matter because the agents have
tested - - just because the agents - - the agents have testified under oath that the substance they saw
on this witness stand were the same or similar condition to that that was seized during the drug raid
itself, to me, completes the chain of custody. That there's no evidence of tampering, then I guess you
could stand up in front of the jury and allege that the Crime Lab people have tampered with this
evidence. But I don't see how you can prove it. It's been settled to me for a while that you don't have
to go through all of these procedures regarding evidence checked into the Crime Lab. The Supreme
Court has talked about this several times, and they've said the procedures of the Crime Lab have
been accepted. Evidence is checked in by evidence check-in people, for the lack of a better term. It's
placed in a secured vault. And the technicians come and get an exhibit, or somebody working under
her would come get an exhibit.
While M.R.E. 803(6) requires that the custodian of records of the Mississippi Crime Lab may introduce lab
reports, except where defendant objects on the ground that his Sixth Amendment right to confront the
person who prepared the test is being violated, Ellis v. State, 661 So. 2d 177, 182 (Miss. 1995), we find
that the trial court did not violate Mooneyham's Sixth Amendment right to confront the expert who
performed the actual analysis on the substance based on the testimony provided above. Ms. Artis testified
that she had to verify the results of the analysis. Therefore, she was capable of testifying to the test results
and the chain of custody. Gray, 728 So. 2d 36 at (¶85).
VI.
Did the trial court err in failing to give the accomplice cautionary instructions marked D-10
and D-11?
¶28. Mooneyham contends that the trial court should have granted the cautionary instructions marked as D10(4) and D-11.(5) Mooneyham maintains that Bowling was a co-conspirator and that the instructions
should have been given pursuant to Derden v. State, 522 So. 2d 752, 754 (Miss. 1988), which states that
"as a general rule a trial judge should not hesitate to grant the cautionary instruction when the State is relying
upon the testimony of co-conspirators."
¶29. An accomplice for these purposes is a person who is implicated in the commission of the crime. Burke
v. State, 576 So. 2d 1239, 1242 (Miss. 1991). In this instance, there has been no evidence which
establishes that Bowling was a co-conspirator, co-defendant, or an accomplice. Bowling was actually
working with law enforcement officials to apprehend a criminal. Therefore, we find that the trial court did
not abuse its discretion and find this issue to be without merit.
VII.
Did the trial court err in allowing the prosecutor to comment during closing argument about
any fictional "business" that was being operated at defendant's home and the presence of a
park across the street from defendant's home?
¶30. Mooneyham contends that the trial court erred by allowing the prosecutor to claim during closing
argument that Mooneyham operated a "business" at his home. He maintains that there was no evidence
presented which established that he was operating a business from his home. The prosecutor made the
following comment:
We now know that Howard Mooneyham, the defendant, was operating a business over on Pearl
Avenue across from Westside Park in Richland.
Mooneyham's attorney objected to this statement because there was no evidence presented at trial which
showed that Mooneyham conducted any business at his home. The trial court noted that both parties were
to keep their arguments within the record as clearly as possible, and also stated that "there's a wide leeway
in final argument for both sides."
¶31. Mooneyham contends that the comment was prejudicial in that it would suggest to the jury that he had
been engaged in a long line of continuous criminal activity. It is well settled that counsel is allowed
considerable latitude in the argument of cases, and is limited not only to the facts presented in evidence, but
also to deductions and conclusions he may reasonably draw therefrom, and the application of the law to the
facts. Carroll v. State, 755 So. 2d 483 (¶7) (Miss. Ct. App. 1999). Further, "where the argument does
not result in 'unjust prejudice against the accused as to result in a decision influenced by the prejudice so
created,' we will find it harmless." Id.
¶32. In the second part of this issue regarding the mention of the park across the street from his home,
Mooneyham did not raise an objection on this ground at trial. Where it is clear from the record that no
objection was made to such testimony, the trial court cannot be put in error for not excluding such
testimony. Hutchinson v. State, 391 So. 2d 637, 639 (Miss. 1980).
VIII.
Whether the length of the sentence in this case ensures that defendant will spend the rest of
his natural life in prison and is therefore a life sentence which amounts to cruel and unusual
punishment.
¶33. Mooneyham contends that his sentence amounts to cruel and unusual punishment. He was sentenced
to serve a term of ten years and fifteen years, the sentences to run consecutively. Mooneyham asserts that
at the time of sentencing he was fifty-seven years of age and would not be released until he is at least eightytwo years old. Based on an actuarial table presented by Mooneyham's attorney, the trial court noted that
the full range of life expectancy of a white male in the United States at the present time is from seventy-two
to seventy-five years old. Mooneyham suggests that his sentences amount to a life sentence which is not
authorized by statute under the crime charged.
¶34. Mooneyham cites no authority as a basis for this contention. For sentence determination, "the trial
court will make a record of and consider all relevant facts necessary to fix a sentence for a definite term [of
years] reasonably expected to be less than life." Handford v. State, 736 So. 2d 1069 (¶8) (Miss. Ct. App.
1999). The court should consider the age and life expectancy of the defendant and any other pertinent facts
which would aid in fixing a proper sentence." Id. However, where the defendant is convicted of multiple
offenses, this should not be taken to suggest that (1) he may not be subjected to full and appropriate
punishment or (2) that his sentences may not be run consecutively. Robert v. State, 756 So. 2d 806 (¶14)
(Miss. Ct. App. 1999).
¶35. Mooneyham was not given the maximum penalty allowable for the crimes charged nor was he given a
life sentence. A trial judge's decision on sentencing will generally not be disturbed on appeal as long as the
sentence is within the range allowed by statute. Luckett v. State, 797 So. 2d 339 (¶30) (Miss. Ct. App.
2001). "Sentencing is purely a matter of trial court discretion so long as the sentence imposed lies within the
statutory limits." Id. Therefore, we find no merit to this issue.
¶36. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF
COUNT I -POSSESSION OF MORE THAN THIRTY GRAMS OF METHAMPHETAMINE
AND SENTENCE OF TEN YEARS AND COUNT II - SALE OF METHAMPHETAMINE
AND A SENTENCE OF FIFTEEN YEARS TO BE SERVED CONSECUTIVELY TO
SENTENCE IN COUNT I ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO
APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
1. Uniform Circuit and County Court Rule 9.04(I) provides: I. If at any time prior to trial it is brought
to the attention of the court that a party has failed to comply with an applicable discovery rule or an
order issued pursuant thereto, the court may order such party to permit the discovery of material and
information not previously disclosed, grant a continuance, or enter such other order as it deems just
under the circumstances.
If during the course of trial, the prosecution attempts to introduce evidence which has not been timely
disclosed to the defense as required by these rules, and the defense objects to the introduction for that
reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine
the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a
continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances,
exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense
to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery
violation if the prosecution withdraws its efforts to introduce such evidence. The court shall follow the
same procedure for violation of discovery by the defense. Discovery material shall not be filed with
the clerk unless authorized by the court. Willful violation by an attorney of an applicable discovery rule
or an order issued pursuant thereto may subject the attorney to appropriate sanctions by the court.
2. Mississippi Rules of Evidence 701 provides Opinion Testimony by Lay Witnesses: If the witness is
not testifying as an expert, his testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful
to the clear understanding of his testimony or the determination of a fact in issue.
3. Uniform Rules of Circuit and County Court 3.12 states: Mistrials: Upon motion of any party, the
court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom,
misconduct by the party, the party's attorneys, or someone acting at the behest of the party or the
party's attorney, resulting in substantial and irreparable prejudice to the movant's case. Upon motion
of a party or its own motion, the court may declare a mistrial if:
1. The trial cannot proceed in conformity with law;
2. It appears there is no reasonable probability of the jury's agreement upon a verdict.
4. Instruction D-10: The Court instructs you that Marcie Bowling has admitted to participation in the
crime in which she claims Howard Mooneyham was also a participant. For this reason, you are
instructed to regard her testimony with great suspicion and distrust, and to consider it with caution.
5. Instruction D-11: The Court charges you that Marcie Bowling has admitted to the participation in
the crimes in which she claims Howard Mooneyham was also a participant. If you believe that such
testimony is reasonable and is neither improbable, self-contradictory or substantially impeached, then
it is your duty to take such testimony into consideration in determining your verdict, and give it such
weight, faith and credit as you believe it deserves; however, for the reason that Marcie Bowling has
admitted to her participation in the crimes, you are instructed to regard all of her testimony with great
suspicion and distrust, and consider it with caution.
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