Opinion
2017-DR-00696-SCT
06-01-2023
STEPHEN ELLIOT POWERS Petitioner v. STATE OF MISSISSIPPI Respondent
EN BANC ORDER
JOSIAH DENNIS COLEMAN, JUSTICE
Before the en banc Court are (1) Stephen E. Powers's Notice of Intent to Supplement/Amend Post-Conviction Petition; Motion to Stay; and Motion to Compel Disclosure of Documents and Information/Inventory of Preserved Biological Evidence; (2) the State of Mississippi's Response in Opposition; (3) Powers's Supplement to March 7, 2022 Notice/Motion Based on Newly Disclosed Documents from the Mississippi Crime Lab; and (4) his Motion for Leave to File Reply Brief, with an attached Reply in Support of Notice and Motion to Stay and Compel Disclosure.
Powers's First Successor Petition for Post-Conviction Relief is pending before us. He intends either to supplement/amend the petition or to file another petition to assert violations of Brady v. Maryland, 373 U.S. 83 (1963), and prosecutorial-misconduct claims. He also intends to file a forensic-testing motion.
Because the Hattiesburg Police Department (HPD) refuses to disclose documents, he asks us to
(1) "issue a short stay of [our] decision";
(2) "order the [S]tate to produce the complete files of all law enforcement and prosecutorial agencies involved"; and
(3) "order the [S]tate to provide information as to all preserved biological evidence in [his] criminal case, including an inventory of that evidence per Mississippi Code Section 99-49-l(3)(e),(i)."
Alternatively, he asks us to remand this matter to the circuit court for a hearing.
After due consideration, we find as follows. First, we find that the stay request should be denied.
Second, we find that the motion to compel disclosure should be granted in part. Mississippi Code Section 99-49-1 (3)(e) (Rev. 2020) says that, "[u]pon written request by the defendant, the state shall prepare an inventory of biological evidence that has been preserved in connection with the defendant's criminal case." "State" includes "law enforcement agencies"-i.e., HPD. See Miss. Code Ann. § 99-49-l(2)(e) (Rev. 2020). Powers says he complied with Section 99-49-l(3)(e) and offers partly redacted emails as support. If he has made a written request for a biological-evidence inventory to HPD, or if he does so, then he is entitled to such inventory from HPD.
Finally, we find that the motion for leave to file a reply should be granted.
IT IS, THEREFORE, ORDERED that the motion to stay is denied.
IT IS FURTHER ORDERED that the motion to compel disclosure is granted in part as stated above.
IT IS FURTHER ORDERED that the Consistent with Section 3(A)(3) of the Mi: Procedures, Powers must electronically ref document.
SO ORDERED.
AGREE: RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ.
AGREE IN PART: KITCHENS, P.J., AND ISHEE, J.
KITCHENS, P.J., OBJECTS TO THE ORDER IN PART WITH SEP ARA TE WRITTEN STATEMENT JOINED BY ISHEE, J. KING, P.J., JOINS IN PART.
KITCHENS, PRESIDING JUSTICE, OBJECTING IN PART TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶l. I agree with the Court's order granting Powers's motion to compel the forensic inventory disclosure required under Mississippi Code Section 99-49-1 (3)(e) (Rev. 2020). I agree also with the Court's order granting leave to file a reply. It is particularly concerning that, in this case, and in an apparent departure from routine practice, the Attorney General's Office advised the State Crime Laboratory not to provide Powers any information or documents.
¶2. I would grant Powers's motion to "order the [S]tate to produce the complete files of all law enforcement and prosecutorial agencies involved." In addition to being entitled to an inventory of all forensic evidence under Section 99-49-l(3)(e), Powers's post-conviction counsel is entitled to "the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner" under Mississippi Rule of Appellate Procedure 22(c)(4)(ii). Powers has filed extensive attachments to his motion to compel, supporting that not all relevant documents have been made available to post-conviction counsel, particularly those related to his newly discovered claim under Brady v. Maryland, 373 U.S. 83, 8383 S.Ct. 1194, 10 L.Ed.2d 215 (1963); See Howard v. State, 945 So.2d 326, 337 (Miss. 2003).
¶3. I therefore object in part to the Court's order.
ISHEE, J., JOINS THIS SEPARATE WRITTEN STATEMENT. KING, P.J., JOINS IN PART.