                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2006-KA-00900-SCT

DARRAL BELL

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         05/18/2006
TRIAL JUDGE:                              HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED:                AMITE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   CHARLES E. MILLER
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: W. GLENN WATTS
DISTRICT ATTORNEY:                        RONNIE LEE HARPER
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED-07/19/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE SMITH, C.J., EASLEY AND DICKINSON, JJ.

      SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.   This case comes to this Court on appeal from the Circuit Court of Amite County, by

defendant Darral Bell. On March 9, 2005, Bell was indicted by an Amite County grand jury

for the murder of LeCedric Hurst. On May 18, 2006, Bell was convicted of manslaughter

and sentenced to a term of fifteen years with five years suspended in the Mississippi

Department of Corrections. Bell subsequently filed a Motion for Judgment Notwithstanding

the Verdict, which was denied. Bell then timely filed a Notice of Appeal to this Court.

¶2.   Finding no errors by the trial court, we affirm.
                                           FACTS

¶3.    On October 30, 2004, Bell and Hurst were involved in an altercation at the residence

of Edna Spears, a relative of Hurst, with other witnesses present. Bell testified that Hurst

struck him with his hand, but Bell did not respond to this attack.       Bell left Spears’s

residence, driving a white F350 work truck, with one passenger, Kerwin Bland. Hurst left

Spears’s residence driving a four-wheeler and traveled onto Perry Road. The two vehicles

were traveling in the same direction at the time of the collision. Hurst was killed in the

collision. Dr. Steven Hayne, who performed an autopsy on Hurst’s body, testified that Hurst

died of massive internal injuries, including lacerations to his liver and aorta. The Amite

County Sheriff’s Office responded to the scene of the wreck. Officer Anthony Reeves made

initial inquiries as to the events causing the wreck.

¶4.    Bell was arrested at 11:20 p.m. on October 30, 2004. On March 9, 2005, Bell was

indicted for the murder of Hurst. An Amite County jury subsequently found Bell guilty of

manslaughter and sentenced him to a term of fifteen years with five years suspended in the

custody of the Mississippi Department of Corrections. The trial court denied Bell’s motion

for judgment notwithstanding the verdict (JNOV). From that conviction and denial, Bell

appeals to this Court, raising the following seven issues on appeal:

       I.     Whether the evidence is insufficient to support conviction pursuant
              to the indictment and relevant law. The lower court erred in not
              granting a judgment notwithstanding the verdict pursuant to Rule
              50(B) of the Mississippi Rules of Civil Procedure.

       II.    Whether the lower court erred by not dismissing the indictment or
              granting mistrial when it allowed testimony of prior bad acts of the
              accused.



                                              2
       III.   Whether the lower court should have dismissed the case based on
              illegal arrest.

       IV.    Whether the lower court erred in its failure to dismiss the case
              based on discovery violations.

       V.     Whether Bell’s Miranda rights were violated and the court erred
              in not suppressing any and all statements made by Bell.

       VI.    Whether the lower court erred in not dismissing the indictment for
              failure to comply with Rule 6.03.

       VII.   Whether the lower court erred in denying Bell’s motion to dismiss
              on the basis of spoliation of evidence.


                                       DISCUSSION

       I.     Sufficiency of the evidence

¶5.    First, Bell asserts that insufficient evidence supported the verdict, and thus the trial

court should have granted his motion for JNOV. Bell argues that the State’s case rested

entirely on the testimony of Kerwin Bland and other witnesses, which should have been

suppressed based on the unreliability of these witnesses. Bell also argues that Bland gave

no independent corroboration of the evidence. Further, Bell asserts that the trial court erred

by not suppressing physical evidence such as the truck, the four-wheeler and photographs.

The State counters that the record reflects that the evidence supporting Bell’s conviction did

not rely entirely upon Bland’s testimony. Further, the State argues that Bland’s testimony

as to what he witnessed was not shown to be credible. Citing McClain v. State, 625 So. 2d

774, 778 (Miss. 1993), the State asserts that the denial of Bell’s motion for JNOV was proper

because sufficient credible evidence supports the denial, including eyewitness testimony,

voluntary inculpatory statements and statements against interest.

                                              3
¶6.    In reviewing a denial of a motion for a JNOV, this Court must consider all of the

evidence in the light most favorable to the State. McClain, 625 So. 2d at 778 (citing

Esparaza v. State, 595 So. 2d 418, 426 (Miss. 1992)); Wetz v. State, 503 So. 2d 803, 808

(Miss. 1987); Harveston v. State, 493 So. 2d 365, 370 (Miss. 1986). The credible evidence

which is consistent with the guilt must be accepted as true. Id. (citing Spikes v. State, 302

So. 2d 250, 251 (Miss. 1974)). Matters regarding the weight and credibility of the evidence

are to be resolved by the jury. Id. (citing Neal v. State, 451 So. 2d 743, 758 (Miss. 1984);

Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980)).       This Court will reverse only

where, with respect to one or more of the elements of the offense charged, the evidence so

considered is such that reasonable and fair-minded jurors could only find the accused not

guilty. Id. (citing Wetz, 503 So. 2d at 808; Harveston, 493 So. 2d at 370; Fisher v. State,

481 So. 2d 203, 212 (Miss. 1985)).

¶7.    Kerwin Bland, the son of Edna Spears, was present at Spears’s house on the night that

the wreck occurred. Kerwin left the house with Bell following the argument between Bell

and Hurst. Kerwin was riding in the truck with Bell when the wreck occurred. At trial,

Kerwin testified that Hurst came up behind the truck and when Hurst got ready to pass the

truck, Bell “cut over” on him. Kerwin testified that he could hear and see Hurst’s four-

wheeler when it was beside the truck. He also testified that Bell looked back through the

window toward the four-wheeler before cutting over on Hurst. Kerwin testified that after

the truck hit the four wheeler, the truck continued to the left and between two trees in a

nearby yard. Damage to the driver’s side of the truck is shown in the photographs,which

were admitted into evidence. Kerwin also testified that after the wreck occurred, Bell told

                                             4
him not to say anything. Despite Bell’s argument that the evidence should be suppressed

based on the lack of reliability of Kerwin’s testimony, a review of the record shows Bell

offered no evidence to prove that this witness was unreliable. Furthermore, the question of

credibility of the evidence is not for this Court to decide, but is to be determined by the jury.

McClain, 625 So. 2d at 778.

¶8.    Tannie Bland, Spears’s nephew, also testified that he was present at Spears’s home

on the night of the incident. Tannie witnessed the altercation between Hurst and Bell.

Tannie testified that he was standing in the driveway when Bell lowered the truck window

and said “bring your bad a** up the road, I got something for you.” Melvin Bland, Spears’s

brother, was also present at Spears’s home that night. Melvin testified to hearing Bell yell

at Hurst from his truck that he “had something for him if he come up the road.” Melvin,

who witnessed the accident from the front porch of Spears’s home, testified that Hurst got

ready to pass Bell when the truck cut over on him. Melvin testified that he could see Perry

Road from the porch because it was at the top of the hill from the house. After the collision,

Melvin saw Bell’s truck go to the left into a nearby yard. However, Melvin testified that the

truck then went out of his sight because a large house blocked his view.

¶9.    Officer Reeves, who responded to the scene of the wreck, testified that Bell initially

told him that Hurst must have hit a tree. However, Reeves testified that Bell showed him the

truck and then told him a second time how the wreck happened. This time, Bell stated that

Hurst lost control of the four-wheeler when he went to pass him and that his four-wheeler

went into the mirror and the front side fender of the truck.




                                               5
¶10.   Additionally, Lieutenant Gerald Wall testified that he interviewed Bell on November

1, 2004. Wall testified that Bell received his Miranda rights and gave a signed a waiver of

those rights at 4:50 p.m. that day. Wall then took Bell’s statement, which was handwritten

and signed by Bell. In the statement, Bell admitted that he and Hurst had an argument at

Spears’s home. Bell subsequently left the home in the work truck. Bell stated that in order

to stop Hurst from getting home, he drove in the middle of the road to prevent Hurst from

passing him. Bell stated that he would get over when Hurst tried to pass, until the last time

when he turned the wheel too far and lost control of the truck, causing Hurst to hit the front

wheel of the truck. Wall read this statement at trial.

¶11.   Dr. Hayne, who performed an autopsy on Hurst, testified that Hurst died as a result

of massive internal injuries. Dr. Hayne testified that Hurst’s injuries would be consistent

with injuries resulting from a truck and four-wheeler crash where the truck ran over the

decedent. Officer Cecilia Kazery, an accident reconstructionist and rebuttal witness for the

prosecution, testified that she reviewed the reports, Bell’s statement, and the photographs in

evidence in addition to personally observing the truck and scene of the wreck. From this

evidence, Kazery opined that Hurst was run over by Bell while traveling beside him or

attempting to pass the truck. Based on her examination of the photographs and scene of the

wreck, Kazery testified that Bell’s truck went through two trees in a nearby yard after

colliding with Hurst’s four-wheeler, which supports the other witnesses’ testimony of how

the wreck occurred.

¶12.   Based on the evidence introduced at trial, we find sufficient evidence in support of the

verdict. Therefore, the trial court did not err in denying Bell’s motion for JNOV.


                                              6
       II.    Prior bad acts

¶13.   Next, Bell argues that the State improperly elicited testimony from officers that Bell

committed a crime by driving in the middle of the road. Bell argues that this testimony

violates 404(b) of the Mississippi Rules of Evidence, which prohibits the admission of

evidence of other crimes or bad acts to prove the character of a person in order to show that

he acted in conformity therewith. Essentially, Bell asserts that the trial court erred by

admitting evidence that he was illegally driving in the middle of the road, a charge for which

Bell was not indicted. The State argues that this evidence was properly admitted as it was

introduced through Bell’s own statements to investigators after he was given a Miranda

warning and signed a waiver of his rights.

¶14.   The admissibility of evidence rests within the trial court's discretion. Hall v. State,

611 So. 2d 915, 918 (Miss. 1992) (citing Wade v. State, 583 So. 2d 965, 967 (Miss. 1991)).

This Court will reverse the ruling of a trial court only where such discretion has been abused

and a substantial right of a party has been affected. Johnson v. State, 666 So. 2d 499, 503

(Miss. 1995)(citing M.R.E. 103(a)).

¶15.   This evidence was part of Bell’s voluntary statement to the investigators that he drove

in the middle of the road to prevent Hurst from passing him. At trial, Lieutenant Wall read

the statement during his testimony with no objection from the defense. Specifically, Bell

wrote that “[i]n order for me to stop him from getting home, I drove in the middle of the road

to stop him from passing me.” His statement was then published to the jury without

objection from the defense. On redirect examination, the prosecution questioned Wall as to

whether Bell’s driving in the middle of the road and attempting to keep the victim from

                                              7
passing his vehicle were against the law. The defense objected to the question. After the

trial court held a bench conference out of the hearing of the jury, the trial court sustained the

objection and excused the jury. At this time, the defense moved for a mistrial based on the

admission of the “prior bad act” of Bell. After hearing arguments from both sides, the trial

court stated that, while it sustained the objection to the testimony that prosecution sought to

elicit, the prosecution was not attempting to admit a prior bad act because the actions in

question happened at the time of the alleged crime. When the jury was brought back into the

courtroom, the trial judge advised the jury to disregard any response to this line of

questioning. Later in the trial, during the testimony of Officer Kazery, the trial court again

sustained an objection to the question of whether it is unlawful to drive in the middle of the

road.

¶16.    This Court held in Ballenger v. State, 667 So. 2d 1242, 1257 (Miss. 1995) that

evidence of other crimes or bad acts is admissible to tell the complete story so as not to

confuse the jury. In Brown v. State, 483 So. 2d 328 (Miss. 1986), the Court stated that the

State has a “legitimate interest in telling a rational and coherent story of what happened . .

. .” Id. at 330.   Further, where it is substantially necessary to present to the jury “the

complete story of the crime,” evidence or testimony may be given, even though it may reveal

or suggest other crimes. Id. This Court also stated, in Duplantis v. State, 644 So. 2d 1235,

1246 (Miss. 1994), that where another crime or act is "so interrelated [to the charged crime]

as to constitute a single transaction or occurrence or a closely related series of transactions

or occurrences," proof of the other crime or act is admissible. Id.




                                               8
¶17.   We find that Bell’s voluntary statement that he was driving in the middle of the road

was part of “the story of the crime,” explaining the events resulting in the death of Hurst.

Furthermore, we find this act was admissible as it is so interrelated with the charge against

Bell that it constitutes a closely related series of occurrences. Therefore, we find that the trial

court did not abuse its discretion in admitting Bell’s statement that he drove in the middle of

the road. However, it was error for the prosecution to elicit testimony from Officer Kazery

that Bell committed a crime by driving in the middle of the road. This error was certainly

avoidable as the trial court had previously sustained an objection to similar testimony by

Lieutenant Wall. The trial court cured the first error by advising the jury to disregard the

testimony concerning whether it is unlawful to drive in the middle of the road. The trial court

further advised the jury that any time an objection is sustained, the jury should not consider

or speculate about what the answer would have been or anything of that nature.

Additionally, the trial court properly sustained the objection to the prosecution’s subsequent

attempt to elicit this testimony from Officer Kazery. Hence, we find that because of the trial

court’s rulings and curative instruction, the error was harmless. Therefore, this issue is

without merit.

       III.    Arrest

¶18.   Bell argues that he was arrested, held and questioned without probable cause. The

State counters that the testimony of the investigating officer sufficiently shows probable

cause to justify Bell’s arrest under the totality of the circumstances test. Officer Reeves

observed the wreck scene involving the four-wheeler and the truck. The State argues that




                                                9
Officer Reeves, who questioned the parties and observed the body of Hurst at the scene, had

probable cause for Bell’s arrest.

¶19.   In defining probable cause in warrantless arrests, this Court stated that “[t]he officer

involved is charged to make a practical, commonsense decision whether, given the totality

of the circumstances, there is a fair probability that the person proposed to be arrested or

searched is involved in substantial criminal activity.” Alexander v. State, 503 So. 2d 235,

239 (Miss. 1987). Officer Reeves testified that after arriving at the scene of the wreck, he

was informed that Bell was the driver of the truck. Once Reeves approached Bell, he was

able to determine that he had been drinking by the smell of alcohol on his breath.     Reeves

testified that he then asked Bell whether he had been drinking, and Bell responded that he

had consumed three or four beers. Reeves confirmed that Bell was the driver of the truck,

at which point he considered Bell a suspect. Further, Reeves’s report states that he arrested

Bell at 11:20 p.m. on October 30, after ascertaining that Bell was the driver of the truck and

had been drinking.

¶20.   Based on Reeves’s observation of Bell at the scene and his confirmation from Bell

that he had been drinking and was the driver of the second vehicle in the accident, we find

that there was probable cause for Bell’s arrest. Therefore, this issue is without merit.

       IV.    Discovery violations

¶21.   Bell asserts that the district attorney committed a discovery violation by submitting

the State expert’s report as to the examination of the truck and crime scene on the first day

of the trial. Citing West v. State, 553 So. 2d 8, 17-20 (Miss. 1989), Bell argues that the

failure of the prosecutor to provide notice of expert testimony before trial was a clear

                                             10
violation of discovery rules and sufficient grounds for dismissal. The State argues that the

prosecution stated for the record that it was not calling an accident reconstructionist in its

case-in-chief, but would use an accident expert if Bell used one in his defense. The State

argues that the record reflects that the defense did not supply the prosecution with the

detailed report of its proposed expert, James Hannah, until the day of trial. The State also

argues that Officer Kazery, an accident reconstructionist, testified for the prosecution only

in rebuttal. The State further asserts that any delay in receiving Kazery’s report can be

attributed to the defense, since it failed to provide Kazery with a copy of Hannah’s report.

¶22.   Based on the procedure first outlined in Box v. State, 437 So. 2d 19, 23-24 (Miss.

1983), when a trial court is faced with previously undisclosed evidence to which the

defendant has objected, it should give the defendant a reasonable opportunity to familiarize

himself with the evidence. Duplantis, 644 So. 2d at 1249-1250. If the defendant thereafter

believes he may be prejudiced by the admission of the evidence because of his lack of

opportunity to prepare to meet it, he must request a continuance. Id. A motion for mistrial

will also suffice "as a request for a continuance." Id. n. 13 (citing West, 553 So. 2d at 18

n.6). However, if the defendant fails to request a continuance, he waives the issue. Id.

Following such a request, the State may opt to proceed without the undisclosed evidence, or

the trial court must grant the continuance. Furthermore, failure to follow the Box guidelines

is prejudicial error, requiring reversal and remand. Id. at 1250 (citing Darghty v. State, 530

So. 2d 27, 33 (Miss. 1988)).

¶23.   During pre-trial motions, the defense requested that the State disclose any impeaching

information that it may have obtained through its accident reconstructionist, Kazery. The

                                             11
prosecution responded that it had not received any reports from her at that time, as it was

waiting on the report from the defense’s accident reconstructionist.        The prosecution

informed the trial court hat it had not consulted an accident reconstructionist to call in its

case-in-chief, and that it would put on Kazery only to provide rebuttal testimony to the

defense’s expert testimony. The trial court then directed the prosecution to provide the

defense with an idea of what Kazery’s testimony would include after she had a chance to

review their expert’s report. At trial, following the testimony of Hannah, the defense rested

and the prosecution then called Kazery as a rebuttal witness. The defense did not object or

request a continuance before she testified. The record reflects that Kazery submitted her

report shortly after receiving Hannah’s report. Kazery testified that she received Hannah’s

report on the Friday before trial and faxed her report to the defense on the following Monday

morning. While Bell relies on West to support his position that the prosecution violated the

discovery rules by failing to provide notice of Kazery’s report until the start of trial, the

defense had notice of the prosecution’s rebuttal expert. The defense also was aware that

Kazery would not provide her report to be used in rebuttal until she had reviewed Hannah’s

report, all of which is evidenced by the pre-trial hearing held on May 2. Furthermore, the

failure of the defense to object to this testimony or request a continuance waived this issue.

       V.     Miranda rights

¶24.   Next, Bell asserts that his Miranda rights were violated. Bell asserts that Lieutenant

Wall did not inform him of any charges against him prior to his giving any statements.

Further, Bell asserts that he was held in jail from October 30 until November 3 without

counsel and without being informed that he was charged with any crime. Citing Coulter v.

                                             12
State, 506 So. 2d 282 (Miss. 1987), Bell asserts that the State failed to prove voluntariness

of his statements beyond a reasonable doubt. Bell argues that his statement was not

voluntarily given and was a result of coercion by the sheriff’s department, and thus the case

against him should be dismissed. The State counters that Bell’s statements were voluntarily

given to Lieutenant Wall after Bell signed a Miranda waiver. The State also argues that Bell

made oral statements to Officer Reeves at the scene that Hurst lost control of the four-

wheeler, causing the accident. The State submits that these initial statements were non-

custodial as they were in response to preliminary questions asked to assist in the investigation

of a death at the scene of a wreck. The State further asserts that the trial court properly found

no due process violation when Bell made his written statement to Lieutenant Wall.

¶25.   This Court has held that to be subject to custodial interrogation, one must be both in

custody and undergoing interrogation. A subject is in custody when his right to leave freely

has been restricted. Roberts v. State, 301 So. 2d 859, 861 (Miss. 1974). The accused is

subject to interrogation when he is questioned by the police or the functional equivalent.

Wilson v. State, 936 So. 2d 357, 362 (Miss. 2006) (citing Pierre v. State, 607 So. 2d 43, 52

(Miss. 1992).

¶26.   The State has the burden of proving the voluntariness of a confession. Agee v. State,

185 So. 2d 671, 673 (Miss. 1966). This burden is met by the testimony of an officer, or other

person having knowledge of the facts, that the confession was voluntarily made without any

threats, coercion, or offer of reward. Morgan v. State, 681 So. 2d 82, 89 (Miss. 1996) (citing

Agee, 185 So. 2d at 673). This creates a prima facie case for the State on the question of

voluntariness. Id. When objection is made to the introduction of the confession, the accused

                                               13
is entitled to a preliminary hearing on the question of the admissibility of the confession,

which is conducted in the absence of the jury. Id. After the State has made out a prima facie

case as to the voluntariness of the confession, if “the accused offers testimony that violence,

threats of violence, or offers of reward induced the confession, then the State must offer all

the officers who were present when the accused was questioned and when the confession was

signed, or give an adequate reason for the absence of any such witness.” Id. (citing Lee v.

State, 236 Miss. 716, 112 So. 2d 254 (1959)). We also have held that “the resolution of

conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial

judge at the suppression hearing." Id. (quoting Chase v. State, 645 So. 2d 829, 841 (Miss.

1994)); see also Veal v. State, 585 So. 2d 693, 697 (Miss. 1991) (this Court will not reverse

trial court on conflicting testimony as to whether coercion used to obtain confession).

¶27.   The trial court held a preliminary hearing on May 2 on Bell’s motion to suppress his

statements to the investigators. After hearing testimony from Officer Reeves, Sergeant John

Stoll and Lieutenant Wall, who were present when Bell made the statements in question, it

denied the motion to suppress. As to the oral statement made to Officer Reeves, the trial

court denied suppression, as there was no evidence that Bell was in any type of custodial

interrogation or being held at the time when Officer Reeves was making the initial inquiry

as to what happened. The trial court found that the written statement was given after Bell

was fully advised of his Miranda rights and voluntarily waived those rights. Therefore, we

find Bell’s right to a preliminary hearing on the question of the admissibility of the

confession was fully satisfied.




                                              14
¶28.   At trial, Lieutenant Wall testified that Bell signed a statement acknowledging his

Miranda rights as well as a waiver of those rights at 4:50 p.m. on November 1, 2004, prior

to writing his voluntary statement at 5:30 p.m., which also is documented by State’s Exhibits

29 and 30. Based on this testimony, we find that the State made out its prima facie case on

the question of voluntariness. However, Bell testified that he was forced to give his

confession to the officers. Therefore, based on Bell’s testimony, the State was then required

to offer as witnesses all the officers who were present when the accused was questioned and

when the confession was signed. Morgan, 681 So. 2d at 89. The State offered all the

officers who were involved in the questioning of Bell. The testimony of Lieutenant Wall and

Officer Stoll, who conducted the interview, Chief Deputy Tim Wroten and Sheriff Perkins,

who did not participate in the interview but were in and out of the interview room, fails to

suggest that any threats or violence were used in obtaining Bell’s voluntary statement.

Therefore, we find that the State met its burden of proving the voluntariness of Bell’s

confession. As the record supports the trial court’s admission of Bell’s statements, we find

this issue lacks merit.

       VI.    Initial Appearance

¶29.   Bell argues that he was improperly held in jail for more than forty-eight hours without

the benefit of an appearance, in which time he was questioned and forced to give a statement

without the benefit of an attorney. Bell cites Abram v. State, 606 So. 2d 1015, 1029 (Miss.

1992) for support. The State asserts that the record reflects that Bell’s non-custodial oral

statement was given on October 30, 2004, and his post-Miranda statement was given within

two days of the wreck and death of Hurst, on November 1, 2004. Further, Lieutenant Wall

                                             15
testified that when he and Officer Stoll introduced themselves to Bell before the interview,

they explained to Bell that they were there to talk to him about being in jail for murder. The

State also argues that there is no evidence of coercion or suggestions being made to Bell prior

to his statements or unnecessary delay in bringing Bell before a magistrate.

¶30.   Rule 6.03 of the Uniform Rules of Circuit and County Court provides that "[e]very

person in custody shall be taken, without unnecessary delay and within forty-eight hours of

arrest, before a judicial officer or other person authorized by statute for an initial

appearance." Bell was arrested on October 30, 2004, and was given an initial appearance on

November 3, a period exceeding the time frame in Rule 6.03. However, despite Bell’s

allegation that he was held in jail for three days without being informed of the charges

against him, the record shows that Bell was arrested at 11:20 p.m. on October 30, was

interviewed November 1 at 4:50 p.m., and gave his voluntary statement at 5:30 p.m., after

signing a waiver of his Miranda rights, a period clearly within forty-eight hours.

¶31.   Bell relies on Abram, where this Court found reversible error in part due to failure to

provide an initial appearance according to Rule 6.03. However, in Abram, this Court found

that the confession was coerced, and that the State would not have obtained the uncounseled

confession if the defendant had been provided a timely initial appearance and access to

counsel. Abram, 606 So. 2d at 1029. This Court held that where the defendant's conviction

relied solely upon his confession, it was reversible error for the State to fail to provide an

initial appearance when a judge was available at all times. Id. In contrast to Abram, Bell’s

conviction did not rely solely upon his confession. See supra Issue I.




                                              16
¶32.   In Jones v. State, this Court went through a detailed analysis of whether the failure

to provide a defendant with an initial appearance within forty-eight hours was prejudicial to

the defendant. 841 So. 2d 115, 131-134 (Miss. 2003). It is well-established that the failure

to provide an initial appearance for an accused within the time provided is not, in itself, a

reason to suppress a confession. Id.(citing Davis v. State, 743 So. 2d 326, 337 (Miss. 1999)).

In Morgan v. State, 681 So. 2d 82 (Miss. 1996) and Veal v. State, 585 So. 2d 693 (Miss.

1991), this Court found that a violation of Rule 6.03 alone will not result in the suppression

of evidence or reversible error where the defendant was informed of his rights and made a

knowing and voluntary waiver. Jones, 841 So. 2d at 132.

¶33.   Furthermore, in Lawrence v. State, 869 So. 2d 353, 354 (Miss. 2003), this Court

found that although Rule 6.03 was violated, there was no Fourth Amendment violation for

failure to give the defendant an initial appearance until six days after his arrest. In this case,

as in the case at hand, the defendant was given his Miranda rights and waived his right to

an attorney prior to his confession. Id. This Court stated that it is clear from Gerstein v.

Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), that “the States certainly have the

right to enact rules and procedures to afford more rights than constitutionally required to

those citizens who are criminally charged. However, when, as here, such a rule is enacted,

and then violated, that rule violation does not necessarily rise to the level of a constitutional

violation.” Lawrence, 869 So. 2d at 356. Mississippi has adopted a procedure for a fair and

reliable determination of probable cause by a judicial officer promptly after arrest via Rule

6.03. Id. (see also County of Riverside v. McLaughlin, 500 U.S. 44, 53-55, 111 S. Ct. 1661,

1668-69, 114 L. Ed. 2d 49 (1991)). This Court held that “[i]f the procedure of Rule 6.03 is

                                               17
followed, the Fourth Amendment rights of the accused are protected; however, the converse

does not necessarily follow ! failure to follow the exact procedure of Rule 6.03 does not

necessarily result in a Fourth Amendment violation.” Id.

¶34.   As discussed in Issue V, the trial judge found that Bell’s statements were admissible

because Bell had been advised of his right to counsel and he knowingly, intelligently and

voluntarily waived this right before making his voluntary statement on November 1. We

uphold the trial court’s decision, as we find no evidence of coercion and find that Bell’s

written statement was voluntarily given within forty-eight hours of his arrest. Therefore, this

issue is without merit.

       VII.   Spoliation of the evidence

¶35.   Finally, Bell argues that the destruction of the rearview side mirror of the truck

violated his due process rights. Bell argues that the sheriff’s department did not examine the

truck or four-wheeler.    The Amite County Sheriff’s Department stored the truck for

approximately three to four days, photographed it, then released it to the owner, Chad

Stutzman. On April 10, 2006, the trial court held a motion hearing on this matter. At this

hearing, the prosecution stated that the truck was owned by Stutzman, Hurst’s employer, and

that it was used daily in Stutzman’s business. The prosecution informed the trial court that

it had contacted Stutzman and informed him that the defense’s expert wished to examine the

truck. The prosecution also informed the defense that the truck was located on the premises

of the owner for its inspection; however, the defense had done so at that time. The

prosecution pointed out that Stutzman had replaced the broken mirror, therefore the original

mirror was not available for viewing.

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¶36.   After hearing both sides’ arguments, the trial court instructed the prosecution to ensure

that the truck was produced for inspection and that all information concerning the broken

mirror was available to the defense. The record reveals that Stutzman put the truck back to

work after it was released. He had the broken mirror replaced, and the remnants were

discarded by his crew. Stutzman could not account for the remnants, as they were discarded

in the woods where his crew was working. Since that time, the owner of the property has

cleared and burned off the property.

¶37.   The State argues that, although Hannah testified that he thought having the broken

mirror would have helped his accident scene investigation, there was no statement in the

record showing how this would have helped Bell’s defense. Relying on Mason v. State, 440

So. 2d 318, 319 (Miss. 1983), the State argues that facts which are not supported by the

record should be ignored on appeal. As such, the State argues that there is no evidence that

the broken mirror was exculpatory, or that the prosecution had anything to do with its not

being available for inspection or testing.

¶38.   In Murray v. State, we clarified three requirements to find a due process violation by

the State in a preservation of evidence case: (1) the evidence in question must possess an

exculpatory value that was apparent before the evidence was destroyed; (2) the evidence

must be such that the defendant would be unable to obtain comparable evidence by other

reasonably available means; and (3) the prosecution's destruction of the evidence must have

been in bad faith. Murray v. State, 849 So. 2d 1281, 1286 (Miss. 2003) (citing State v.

McGrone, 798 So. 2d 519, 523 (Miss. 2001).




                                              19
¶39.   Although both sides and their experts disagree as to the exculpatory value of the

mirror, there is no need to inquire into the mirror’s exculpatory value for the purpose of

determining whether a due process violation occurred, because Bell fails to meet the last two

prongs of the test. First, the State photographed the broken side mirror from two different

angles. These photographs were admitted into evidence. Hannah testified that it would have

been important to have seen the actual, damaged mirror because it is hard to tell depth

perception through the pictures. However, Hannah went on to admit that photographs as well

as physical evidence are both reliable sources of information, and he has been trained to use

both. It should also be noted that the wreck occurred on October 30, 2004; however, Hannah

did not receive any information concerning this case until July 2005, several months after

Stutzman had repaired the mirror and returned the truck to use.

¶40.   With regard to the last prong, bad faith is defined as "not simply bad judgment or

negligence, but rather . . . conscious doing of a wrong because of dishonest purpose or moral

obliquity; it is different from the negative idea of negligence in that it contemplates a state

of mind affirmatively operating with furtive design or ill will." Murray, 849 So. 2d at 1286

(citing Black's Law Dictionary 139 (6th ed. 1990)). In Tolbert v. State, this Court also stated

that an inference that the evidence was favorable to the defense exists only “where the

spoliation or destruction was intentional and indicates fraud and a desire to suppress the

truth.” Tolbert v. State, 511 So. 2d 1368, 1372 (Miss. 1987) (quoting Washington v. State,

478 So. 2d 1028, 1032-33 (Miss. 1985)). There is no evidence that the prosecution

intentionally caused the destruction of the mirror or caused it to be unavailable. Neither the

prosecution nor the defense was able to use the mirror in the preparation of its case.

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¶41.   The record shows that the defense did not ask to see the truck until November of 2005.

The State contacted Stutzman to get permission for the defense to see the truck, to which he

agreed. Stutzman used this truck in his business during the week, but the truck was readily

available for viewing on the weekends. The trial court found that the truck was released to

its private owner several days after the wreck and that the damage to the truck was well

documented by the numerous photographs in evidence. For these reasons, the trial court

denied Bell’s motion to dismiss, finding no willful destruction of the evidence. We find that

the trial court did not err in its decision to deny Bell’s motion to dismiss.

                                      CONCLUSION

¶42.   Based on the foregoing reasons, we affirm the judgment of the Circuit Court of Amite

County.

¶43. CONVICTION OF MANSLAUGHTER AND SENTENCE OF FIFTEEN (15)
YEARS WITH TEN (10) YEARS TO SERVE AND THE REMAINING FIVE (5)
YEARS TO BE SERVED ON POST-RELEASE SUPERVISION FOR A PERIOD OF
FIVE (5) YEARS UNDER THE SUPERVISION OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

     WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH
AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




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