Petition — Boteler v. Mississippi

Searems Court, UL &7

pee

JAN 29 1979

caer RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

E. L. BOTELER, JR.,

Petitioner,

VS.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

OF MISSISSIPPI

SAMUEL H. WILKINS

WILKINS, ELLINGTON & JAMES

105 North State Street

Post Office Box 504

Jackson, Mississippi 39205

Attorney for Petitioner

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

INDEX

III icin scochincnscniscedculiduilaiicenshahacieraiiioresetiistieketsntietien 1

RESET ee PS OY ERO EL NE 1

RETIRE pet EL IROL 2

Constitutional Provision and Statutes Involved .............. 2

I ss santlinsslalngmmnebones 2

Reasons for Granting the Wit ....................:ccccseeeeeeeeeeeees 5

REESE RE ETRE Fe, NCA t Aa Ce ee Se ROR 10

Appendix A—Opinion of the Court Below ........................ Al

Appendix B—Order of the Court Denying Petition for

SII Nia sekicedhatastlinia ap tiedsnabiaileeeecoeivcdditaabeiehdetinnansinintionses Al5

AUTHORITIES CITED

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.

ERR EIRIET Ey ECMO FP RO EO 6

Ingram v. Patton, 367 F.2d 933 (4th Cir., 1966) .............. 9

Kyle v. United States, 297 F.2d 507 (2nd Cir., 1961) ...... 7

Moore Vv. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d

II hs Std Sait sic caet kaa ieaninenachsetionodondastaaimtans 6,7

Napue v. People of State of Illinois, 360 U.S. 264, 79

rs BAT, @ Rem BELT CIDID) onan cccescsccssseceseccese. 7

Ogden v. Wolff, 522 F.2d 816 (8th Cir., 1975) .................. 6,7

United States v. Kahn, 472 F.2d 272 (2nd Cir., 1973) ... 7

United States v. Keogh, 391 F.2d 138 (2nd Cir., 1968) ... 8

United States v. Maroney, 319 F.2d 622 (3rd Cir., 1963) 8

United States v. Miller, 411 F.2d 828 (2nd Cir., 1969) ... 8

United States v. Morrell, 524 F.2d 550 (2nd Cir., 1975) . 7

II

\

United States v. Nixon, 418 U.S. 683, $4 S.Ct. 3090, 41

RAE IP cheno tie pussaciciithacstd ery ith ceasnobeiinbasmabielagsBibsciSbinse 9

United States v. Rosner, 516 F.2d 269 (2nd Cir., 1975). 7

United States v. Seijo, 514 F.2d 1357 (2nd Cir., 1974) .... 7-8

UNITED STATES CONSTITUTION CITED

PIC FRI oi ee a )

In the Supreme Court of the United States

OCTOBER TERM, 1978

E. L. BOTELER, JR.,

Petitioner,

vs.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

OF MISSISSIPP)

Petitioner, E. L. Boteler, Jr., respectfully prays that

a Writ of Certiorari issue to review the Judgment herein

of the Supreme Court of the State of Mississippi entered

on October 4, 1978, Petition for Rehearing denied on No-

vember 1, 1978.

OPINION BELOW

The opinion of the Court below is reported in 363

So.2d 279.

JURISDICTION

The Judgment of the Mississippi Supreme Court was

made and entered on October 4, 1978, Petition for Rehear-

ing denied November 1, 1978, and is appended hereto. The

jurisdiction of this Court is invoked under 28 United States

Code, §1257(3).

QUESTIONS PRESENTED

Did the Court below err in holding that the prosecu-

tion’s failure, in defiance of the trial judge’s order, to make

a pre-trial disclosure of a statement made by the Defen-

dant/Petitioner did not violate the Petitioner’s right to a

fair trial?

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED

1. The due process and equal protection clauses of

the Fourteenth Amendment, United States Constitution

which provide as follows:

* * * [NJor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

2. The statute under which Petitioner was prosecuted,

though nothing turns on its terms, was §97-11-31 of the

Mississippi Code of 1972, which provides as follows:

If any officer, or other person employed in any public

office, shall commit any fraud or embezzlement therein,

he shall be imprisoned in the penitentiary not more

than ten years, or in the county jail not more than one

year, or be fined.

STATEMENT OF THE CASE

The Grand Jury for the First Judicial District of Hinds

County, Mississippi, returned three (3) indictments against

E. L. Boteler, Jr., charging him with embezzlement in

3

violation of §97-11-31 of the Mississippi Code of 1972, An-

notated, between April and October of 1975. A Motion for

Discovery and Inspection was timely filed before the Hon-

orable Russel Moore, Circuit Judge of Hinds County, Mis-

sissippi, and on December 21, 1976, the Order for Discovery

and Inspection to be afforded to Petitioner was issued.

The State of Mississippi was ordered to produce, inter alia,

any statements made by the Petitioner which were in its

possession or thereafter came into its possession. How-

ever, the State represented on several occasions that it had

no such statements in its files. The case came on for trial

on January 4, 1977, and E. L. Boteler, Jr., took the witness

stand completely unaware that the prosecution was in

possession of a document with potentially devastating im-

pact on his credibility.

' In preparing for the trial, defense counsel had learned

that during July, 1976, when an audit conducted by the

State had revealed that there were funds missing from the

Mississippi State Highway Department, Boteler had spoken

to John Tabb, then Assistant Director of the Mississippi

Highway Department, E. L. Shaw, Federal Highway Ad-

ministrator, and Sam Waggoner, Highway Department

Commissioner for the Central District of Mississippi, about

the missing funds. Counsel satisfied themselves that, in

each instance, Boteler had described his actions and mo-

tives in terms which were substantially the same as_those

he would use from the witness stand. Based upon this

consistency of position, counsel fashioned the defense

strategy—wholly ignorant of the fact that Boteler had

spoken at length to John Hamilton, Director of the Mis-

sissippi Legislative Audit Committee, i.e., the Peer Com-

mittee, on July 29, 1976; that the latter had made con-

temporaneous notes of the interview; and that the notes

reflected Boteler ostensibly telling Hamilton a story very

4

different from the one Boteler would relate from the wit-

ness stand.

At trial, defense counsel called Boteler to the witness

stand. During cross-examination, the prosecution sought

to impeach Mr. Boteler’s testimony on the basis of state-

ments Boteler had made to John Hamilton. Defense coun-

sel immediately recognized what was about to take place,

and addressed the Court outside the presence of the jury

with respect to whether Hamilton had memorialized his

interview of Boteler in any way. In addition, counsel

sought permission to examine Hamilton under oath for

this specific purpose. In response, both State Prosecutors

categorically denied that there was any written memoran-

dum of the interview. Accepting this representation, and

confirming that no such written memorandum was con-

tained in the case file turned over to him for examination

prior to the trial, the trial judge then permitted the cross-

examination of Boteler to continue, based upon the state-

ments ostensibly made to John Hamilton on July 29, 1976.

After a series of devastating specific questions about

Boteler’s statements to Hamilton, the Court reversed itself,

excused the jury and ordered that John Hamilton be called

for voir dire examination to ascertain whether he had

memorialized his conversation with the Petitioner. It was

established that Hamilton had made five (5) pages of notes

of his interview with Petitioner Boteler, and that Assistant

Attorney General Lowrance, one of the prosecutors at the

trial, had known of the existence of these notes since the

day following the entry of the Court’s pre-trial discovery

order. Upon examining the notes, the trial judge con-

cluded that had they been shown to him prior to trial he

would have ordered them produced for the Petitioner’s

inspection. The trial judge then ordered that the notes

be made available to defense counsel, but denied Petitioner’s

5

Motion for a Mistrial based upon the State’s failure to

produce the notes prior to trial. The cross-examination of

Boteler was continued to conclusion and the defense

rested.

The jury returned a verdict of guilty and Petitioner

was sentenced to a six (6) year term of imprisonment.

The Petitioner appealed his conviction to the Mississippi

Supreme Court, which affirmed the judgment of the Cir-

cuit Court.

REASONS FOR GRANTING THE WRIT

Petitioner’s counsel prepared his defense totally un-

aware of the existence of notes John Hamilton had made

of an interview with Petitioner Boteler. Although defense

counsel were denied access to this critical information,

one of the two State Prosecutors, Assistant Attorney Gen-

eral William Lowrance, was fully aware of the existence

of the notes. Nevertheless, in defiance of the Court’s pre-

trial discovery order, Lowrance represented to the Court

and to defense counsel, prior to trial, that the State knew

of no statement made by the Petitioner. At the trial, when

defense counsel, outside the presence of the jury, addressed

the Court with respect to whether Hamilton had memorial-

ized his interview of Boteler in any way, both State Prose-

cutors categorically denied that there was any written

memorandum of the interview. Later, when John Hamil-

ton was voir dired, it was revealed that Hamilton had

made five (5) pages of notes and that Assistant Attorney

General Lawrence, had known of the existence of these

notes since the day following the entry of the Court’s pre-

trial discovery order. After several denials, Assistant At-

torney General Lowrance finally conceded, during trial,

6

that by December 22, 1976, he knew of the Boteler state-

ment and Hamilton’s contemporaneous notes. The prose-

cutor’s conduct violated Petitioner’s right to a funda-

mentally fair trial, as guaranteed to him by the Constitu-

tion of the United States.

The well-established rule is that the prosecution has

a duty to disclose ail favorable evidence within its control

and knowledge, which is material to the defense. Brady

v. Maryland, 373 U.S. 83, &3 S.Ct. 1194, 10 L.Ed.2d 215

(1963), Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33

L.Ed.2d 706 (1972). In Moore, supra, this Court set forth

a three-pronged test in determining whether a violation of

due process has occurred: (1) suppression by the prose-

cution after a request by the defense, (2) the favorable

character of the evidence and (3) the materiality of the

evidence. In the instant case, the notes were clearly sup-

pressed by the prosecution. While portions of the withheld

statement were inculpatory, the statement itself would

have been favorable to the Petitioner since it could have

been used by defense counsel in planning and presenting

Petitioner’s defense. Because the statement was concealed,

defense counsel was forced to operate on the premise that

no such statement existed and made crucial tactical deci-

sions they would not have made but for the State’s mis-

representation. Further, Hamilton’s notes contained a

highly exculpatory aspect since Hamilton conceded that

Mr. Boteler said many things during the interview which

corroborated Appellant’s testimony on the witness stand.

Thus, the statement was material to the Petitioner’s presen-

tation of his defense at trial.

The Court of Appeals for the Eighth Circuit in Ogden

v. Wolff, 522 F.2d 816 (1975), analyzed the three-pronged

test of Moore, supra. That Court concluded that if the

suppression was deliberate, then the burden of the defense

7

2

to show materiality might be eased, and that the burden

of demonstrating the favorable character of the evidence

is slight—it must be either probative on the issue of guilt

or its development by skilled counsel could induce a reason-

able doubt in the minds of the jury to thereby avoid

a conviction. The evidence withheld from the Petitioner’s

defense counsel meets the standard spelled out by Ogden

and Moore, supra. The statement was in the possession

of the prosecution at least two (2) weeks prior to the

trial, but notwithstanding its material inculpatory and

exculpatory content and in defiance of the trial court’s

order directing such statements to be turned over to the

defense prior to trial, the prosecution did not make the

statement available to defense counsel. So, the statement

was deliberately suppressed, would have been of great

utility to the defense and could have been developed to

raise a reasonable doubt of Petitioner’s guilt in the minds

of the jurors.

The Court of Appeals for the Second Circuit has re-

peatedly held that the standards controlling the granting

of a new trial vary according to the extent of the Govern-

ment’s culpability. Relying on Napue v. People of State

of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217

(1959), that Court in Kyle v. United States, 297 F.2d 507

(1961), concluded that the required showing of prejudice

to a defendant varies inversely with the degree to which

the basic concepts of fair play are violated. In United

States v. Kahn, 472 F.2d 272 (2nd Cir., 1973), the Court said

that a new trial is warranted where the Government de-

liberately suppresses evidence, if the evidence is merely

material or favorable to the defense. In addition to those

cases already mentioned, see United States v. Rosner, 516

F.2d 269 (2nd Cir., 1975), United States v. Morrell, 524

F.2d 550 (2nd Cir., 1975), United States v. Seijo, 514 F.2d

8

1357 (2nd Cir., 1974), United States v. Miller, 411 F.2d 828

(2nd Cir., 1969), United States v. Keogh, 391 F.2d 138 (2nd

Cir., 1968).

Prior to Boteler’s trial, the Court had ordered the

State to turn over to the defense any relevant written

or recorded statement or confession made by the Petitioner

in the possession, custody .or control of the State. The

Court’s Pre-trial Discovery Order was a continuing one

and the prosecution should have made the notes of Hamil-

ton’s interview with Boteler available to the defense when

they became aware of their existence. The fact that they

did not do so was misconduct which resulted in unfair

prejudice to the defense. Defense counsel had no prior

knowledge of such statement. Had the defense been aware

of the statement, Petitioner’s theory of defense would have

been different.

A similar case, United States v. Maroney, 319 F.2d

622 (3rd Cir., 1963), concerned a habeas corpus proceeding

where the petitioner was denied the writ and the United

States Court of Appeals for the Third Circuit reversed,

holding the petitioner had been denied due process in

his murder trial. The petitioner was convicted of murder-

ing a sheriff who was transporting him in a police car.

The Court held that he was denied due process in the

state court trial when the court refused to allow appel-

lant’s counsel to examine the appellant’s statement to police

that the driver of the automobile had admitted that the

defendant and the victim had struggled in the backseat

of the car. Had the appellant’s counsel known of the

statement by the driver of the automobile it could have

used that statement in cross-examination, as the driver

was the key witness for the prosecution. The Court said

the withholding of such information impinged on a vital

9

area in the appellant’s defense and was a denial of the

due process clause of the Fourteenth Amendment of the

Constitution.

In Ingram v. Patton, 367 F.2d 933 (4th Cir., 1966),

dealing with a petition for writ of habeas corpus, the

petitioner’s contention was that the prosecution’s chief wit-

ness was misnamed in his robbery prosecution so that

the petitioner was prevented from discovering that the

witness had a perjury conviction. The witness, who was

also the robbery victim, was named in the indictment

as James Coates when in reality his name was James

Capes. In holding that the petitioner was entitled to the

writ, the United States Court of Appeals for the Fourth

Circuit said that the primary issue was whether the defen-

dant was deprived of an effective defense because critical

information was withheld from counsel at the trial. That

Court said that it was immaterial whether the withholding

of the information was deliberate concealment by the

prosecution or simply error in misnaming the witness.

As this Court pointed out in United States v. Nixon, 418

U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039, in order for the

Constitutional guarantee of due process to be accomplished,

it is essential that all relevant and admissible evidence

be produced. At Petitioner’s trial, only when the existence

of the notes was revealed by the witness Hamilton, did

the prosecutors admit their prior knowledge of the notes’

existence. Under such circumstances the failure of the

trial court to grant Petitioner’s Motion for a Mistrial, which

was grounded on the State’s utilization of Petitioner’s state-

ment without disclosing it to defense counsel before trial,

violated Petitioner’s Constitutional right to due process.

10

CONCLUSION

For the reasons aforesaid, it is respectfully prayed

that a Writ of Certiorari be granted to review the judg-

ment of the Supreme Court of the State of Mississippi.

Respectfully submitted,

SAMUEL H. WILKINS

WILKINS, ELLINGTON & JAMES

P. O. Box 504

Jackson, Mississippi 39205

Counsel for Petitioner

Al

APPENDIX

APPENDIX A

IN THE SUPREME COURT OF MISSISSIPPI

NO. 50,485

E. L. BOTELER, JR.

Vv.

STATE OF MISSISSIPPI

BEFORE PATTERSON, SUGG AND BOWLING

SUGG, JUSTICE, FOR THE COURT:

The Grand Jury of the Circuit Court of the First

Judicial District of Hinds County returned three indict-

ments against the defendant charging that he embezzled

$25,000, $75,000 and $100,000 in money which was the

property of the State of Mississippi. On defendant’s mo-

tion to consolidate the indictments for trial, the trial court

consolidated the indictments charging the $25,000 and

$75,000 embezzlements, but not the $100,000 embezzlement.

The jury found the defendant guilty on both indictments.

Defendant was sentenced to ten years in the Mississippi

Department of Corrections on each charge. The judgment

provided that the sentences would be served concurrently

with four years of each sentence suspended.

The state’s case established that defendant, while serv-

ing as Director of the Mississippi State Highway Depart-

ment, caused a Highway Department Imprest Fund check

in the amount of $25,000 and a state warrant in the amount

of $75,000 to be issued to a fictitious entity called the

A2

Regional Planning Consortium. The Imprest Fund check

was dated April 24 and the warrant May 13, 1975.

Defendant deposited the proceeds from the $25,000

Imprest Fund check in the Bank of Mississippi in Grenada

to the account of “E. L. Boteler, Sr. or E. L. Boteler,

Jr.,” less $10,000 which was deposited in defendant’s River-

dale Farm Account in the same bank.

Defendant deposited the $75,000 state warrant in the

Fulton National Bank of Atlanta, Georgia on June 3, 1975

to an account styled “Regional Planning Consortium” with

the defendant as the only authorized signatory.

Defendant withdrew $70,000 from the account in Fyl-

ton National Bank in two checks for $30,000 and $40,000,

leaving $5,000 in the Regional Planning Consortium ac-

count, at the time of the trial.

The $30,000 check on the Georgia bank was deposited

in the Bank of Mississippi in Grenada to the account of

E. L. Boteler, Sr. or E. L. Boteler, Jr. on August 11,

1975. The deposit slip shows that $11,093.15 was deducted

for a note payment and interest, leaving a net deposit

of $18,906.85. The $40,000 check drawn on the Fulton

National Bank by defendant was payable to Greenwood

Production Credit Association and applied to his outstand-

ing loan with the Association. The check was delivered

to the Association on August 20, 1975 pursuant to a request

that defendant make a payment on his loan from outside

income because his loan was deteriorating.

Defendant issued ten checks on the account of E. L.

Boteler, Sr. or E. L. Boteler, Jr. in the Bank of Mississippi

in Grenada from May 1, 1975 to October 4, 1975 in the

total amount of $32,433.31. The checks varied in amounts

from $7.12 to $7,750.51 and were issued for defendant’s

purposes. There was also debited to this account $93.05,

A3

$3.05 to pay for personalized checks and $90.00 for credit

life insurance.

The state also proved that $10,960.34 was withdrawn

by check from the Riverdale Farm account between April

15, 1975 and May 6, 1975, most of the checks being signed

by Lee Boteler.

In order to secure the $100,000 in question, Boteler

prepared a memorandum dated April 24, 1975 which fol-

lows:

MISSISSIPPI STATE HIGHWAY DEPARTMENT

Inter-Departmental Memorandum

TO: Assistant Director-Administration

DATE: April 24, 1975

FROM: Director

/s/ E. L. Botteler

Subject or Project No: Regional

Planning

Consortium

2 Court Square

Atlanta, Georgia

Efforts have been exerted for several years to develop

a transportation route from Brunswick, Georgia, to

Kansas City, Missouri, either as an extension of the

Interstate System or as a comparable facility.

Those efforts include promotion by a private organiza-

tion, The Multi-State Multi-sfode Transportation Cor-

ridor Association. Its membership consists of individ-

uals, towns along the proposed route and representa-

tives of the States of Missouri, Arkansas, Tennessee,

Mississippi, Alabama and Georgia.

A4

There was also a parametric study of the proposed

route conducted through the cooperative efforts. of

all the affected states and the Department of Transpor-

tation. This is the only part the State of Mississippi

has made any financial contribution to. This study

was conducted by a consultant with the State of Ala-

bama selecting and managing the consultant. The

study is complete and has been presented to the sev-

eral states as well as to the Association.

The states mentioned above, with the possible addition

of the State of Florida, are now, through their respec-

tive Highway or Transportation Departments and us-

ing the parametric study, more definitely developing

conceptual plans and proposed legislation. It is this

effort that Mississippi State Highway Department will

need to support financially and is estimated to cost

$700,000. At the beginning each state has agreed to

put up $100,000, for a total of $600,000. If the State

of Florida elects to participate, the total will ‘be $700,-

000. The Administrative Officer of each participating

Department will direct the activities and the Georgia

Department will act as Treasurer or Trustee of ac-

counts.

Mississippi’s pro rata part of the funds is now due

and you are requested to provide the same from pro-

grammed preliminary engineering on U. S. 78. Pay-

ment is to be made to:

Regional Planning Consortium

2 Court Square

Atlanta, Georgia

ELB: ly

A5

In his brief, defendant states:

At the trial, the State conclusively established

that the defendant had caused a Highway Department

Imprest Fund check in the amount of $25,000 and

a State Warrant in the amount of $75,000 to be issued

to a fictitious entity known as the Regional Planning

Consortium in April and May 1975, respectively, and

that these funds were ultimately transferred to Bo-

teler’s personal account and/or utilized for his own

benefit. Defendant did not dispute these facts, but

testified that the checks were issued to repay him

for the expenditure of a like amount of cash given

to Herschel Jumper, the Highway Department Com-

missioner for the Northern District. Jumper was given

the money for the purpose of funding a lobbying effort

in Washington which had as its goal securing Congres-

sional legislation to pay the cost of building bridges

across the Tennessee-Tombigbee Waterway. (Refer-

ences to Abstract Pages Omitted).

The only defense offered was that defendant was act-

ing in good faith, believing that he had a right to reimburse

himself for the funds given to Jumper for lobbying pur-

poses, although he recognized and admitted that there

was no statutory authority for him to expend funds of

the Mississippi State Highway Department for such pur-

poses.

Boteler testified that he gave Jumper, either personally

or through an intermediary, $125,000 for lobbying purposes.

He said he gave Jumper $25,000 in cash on April 22,

1975, $30,000 in cash on July 22, 1975, and Steve Guyton

$30,000 in cash on June 10, 1975 to be delivered to Jumper,

who denied receiving any money from the defendant.

A6

Although defendant was not being tried on the third

indictment charging him with embezzling $100,000, he in-

jected the third indictment into the trial by cross-exam-

ination and by his d‘rect testimony.

According to defendant he received an additional

$100,000 by endorsing a check from the Tombigbee River

Valley Water Management District, which had agreed to

advance engineering funds to the Highway Department,

and converted it into four cashier’s checks for $25,000

each, payable to the Regional Planning Consortium. De-

fendant testified that he deposited one of these checks

in the Bank of Mississippi in Grenada and retained the

other three in his desk drawer. He further testified that

he borrowed $125,000 and reimbursed the state for the

$100,000 check from the Tombigbee River Valley Water

Management District.

Defendant testified that he was able to give Jumper

$125,000 in cash because he had that amount in a closet

in his apartment in Jackson. He said his father entered

a hospital in 1970 and gave him a black box which con-

tained his important papers, along with $25,000 in cash.

He kept the box in his apartment in Jackson. After his

father’s death, he entered his father’s safety deposit box

and discovered $102,000 in one hundred dollar bills and

transferred this sum to his apartment.

In People v. State, 288 So.2d 835 (Miss. 1974) we

set forth the essential elements of embezzlement in the

following language:

The essential elements of embezzlement are set

out in May v. State, 240 Miss. 361, 127 So2d 423

(1961), as follows:

The constituent elements of the offense are

(1) an agent or trustee ... (2) embezzling or

AZT

converting to his own use, (3) ... money, or

other valuable . . . property of any kind, (4)

. intrusted to his care or possession by virtue

of his position or employment. Code Sec. 2115;

18 Am. Jur., Embezzlement, Sec. 2. (240 Miss. at

363, 127 So.2d at 425). [288 So.2d at 838].

There is no doubt from the testimony in this case

that defendant converted the funds to his own use. The

state’s case showed beyond a reasonable doubt that the

defendant deposited the $100,000, used the money to pay

debts, and for other purposes of the defendant. His de-

fense is that he gave Herschel Jumper $125,000 of his

own funds for lobbying purposes and repaid himself from

state funds. This is not a defense to embezzlement.

In the case of State v. Pratt, 14 Kan. 660, 220 P.

505 (1923) the Supreme Court of Kansas had before it

an embezzlement case where a bank president claimed

that he used embezzled funds for the benefit of the bank

and not for his personal use. The Kansas Court stated:

Appellant offered to show that, because of heavy

loans made to some of its directors, the bank of which

he was president was hard pressed for funds; that

the proceeds from the sale of the bonds and the F. C.

Cragg deposit were used for the benefit of the bank,

and not for his personal use. These matters do not

constitute a defense. The motive which prompted the

embezzlement is not material. 20 C.J. 436. The money

was applied to the use of appellant, when he used

it in the way he wanted to use it. Whether he chose

to use it on his personal obligations, or give it to

the bank of which he was president, or spend it in

riotous living, he directed its disposition, and thereby

applied it to his own use. (220 P. at 508).

A8

If defendant could be acquitted of the charge of em-

bezzlement on the defense offered in this case, any em-

bezzler could be acquitted upon a simple showing that

he did not retain the embezzled funds for his own use

but gave them to another person. Whether the defendant

chose to use the money for his personal obligations or

give it to Herschel Jumper for lobbying purposes does

not matter, because, in either event, he directed its disposi-

tion and thereby applied it to his own use. The element

of conversion was established.

It is against this factual and legal background that

we must consider defendant’s only assignment of error

which is stated by him as follows:

Appellant’s trial was rendered fundamentally un-

fair by gross prosecutorial misconduct, when the prose-

cution, in defiance of the circuit judge’s order, failed

to disclose before trial, that it had in its possession

notes of a lengthy statement made by defendant to

a State’s witness, and then utilized said previously

undisclosed statement to undermine defendant’s credi-

bility, the central issue in the case, by attempting

to demonstrate to the jury that the defendant’s prior

statement contradicted his sworn testimony from the

witness stand in several crucial aspects.

Defendant in his brief with reference to this assign-

ment of error states:

By flatly conceding the conversion of State monies,

but asserting that he believed that he had a right

to reimburse himself for the cash that he had pre-

viously expended for the benefit of the State of Mis-

sissippi. the only issue at trial became Mr. Boteler’s

credibility, as it reflected upon the state of his mind

and the existence or lack of criminal intent.

A9

Accordingly, in presenting his good faith defense

at trial, and in attempting to maintain his credibility

with the jury, it was crucial that Mr. Boteler be able

to demonstrate that his testimony from the witness

stand was consistent in every important respect with

the version of the decisive events which he had nar-

rated to third parties at or about the time his actions

were discovered.

In preparing for the trial, defense counse! had

learned that during July 1976, when the State auditor

had uncovered what had taken place, Boteler had

spoken to John Tabb, E. L. Shaw and Sam Waggoner

about the missing funds. Counsel satisfied themselves

that, in each instance, Boteler had described his actions

and motives in substantially the same terms that he

would from the witness stand. Based upon this con-

sistency of position, counsel fashioned the defense

strategy—wholly ignorant of the fact that Boteler had

spoken at length to John Hamilton on July 29, 1976,

that the latter had made contemporaneous notes of

the interview; and that the notes reflected Boteler

ostensibly telling Hamilton a story very different from

the one appellant would relate from the witness stand.

John Hamilton, Director of the State Performance and

Evaluation and Review Committee, interviewed Boteler

on July 29, 1976. The interview covered the subject of

missing funds and also the matter of a contract for design

of bridges to cross the Tennessee-Tombigbee Waterway.

The question of the contract for design of bridges is not

pertinent to this case. Hamilton made notes during the

interview in the presence of Boteler which were introduced

for identification. Boteler’s contention is that these notes

and the testimony of Hamilton based on his notes were

devastating to his case because the central issue in the

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case was defendant's credibility. Defendant then states

in his assignment of error that Hamilton’s testimony con-

tradicted the sworn testimony of defendant in “several

crucial respects.” Hamilton’s testimony is summarized in

defendant’s abridgement of the record as follows:

Our conversation was in private and lasted about two

hours. When I asked him about the $200,000, he said

he had given $125,000 to Herschel Jumper in a series

of cash transactions. Mr. Boteler said a $25,000 check

and a $75,000 check came out of the Imprest Fund.

He stated he had given the first $25,000 to Mr. Jumper

himself, and deposited the $75,000 in an Atlanta Bank

in an account styled “Regional Planning Consortium.”

He stated, I believe, that $40,000 of that was trans-

ferred to Greenwood Production Association and

$30,000 to the Bank of Grenada, leaving $5,000 in

the Atlanta account. Mr. Boteler told me that the

entire $70,000 that he had transferred to his personal

account, plus $5,000 of his own money had been given

to Jumper, and of that amount $30,000 was relayed

to Jumper through Steve Guyton. He never men-

tioned he was paying himself back. Mr. Boteler told

me he was personally responsible for $25,000, but that

the Commissioners were jointly liable with him for

$175,000 as that was part of the Commission minutes.

This did not make sense to me because only $100,000

was part of the Commission minutes,

Mr. Boteler said that Jumper wanted the money

to promote the Multi-State Multi-Mode project and

for lobbying in Washington. He thought the money

had gone into local politics and to Washington lobby-

ists. He further stated that Senator Jennings Ran-

dolph, Chairman of the Senate Public Works Commit-

All

tee, ‘takes his pound of flesh from every public works

contract.’ Mr. Boteler never mentioned disbursement

of any monies in connection with the Tenn-Tom proj-

ect. He stated he had repaid Hamp King $100,000

and had the other $100,000 in a savings account.

The notes that I made contemporaneously to my

conversation with Mr. Boteler reveal that we did dis-

cuss the need for funds for the Tenn-Tom bridges.

This was just prior to the description of the cash

payments to Jumper. Mr. Boteler told me that he

gave Jumper a total of $125,000 cash, $30,000 of which

was delivered through Guyton. Boteler knew I had

the power to subpoena bank records. He told me

he put $30,000 in the Grenada bank and then took

out the cash and gave it to Jumper, although the

bank records do not reveal such a transaction. It

did not occur to me that Greenwood Production Cred-

it was not the type of institution Mr. Boteler could

have made a withdrawal from. I wrote down what

Mr. Boteler told me.

Mr. Boteler stated that $175,000 was approved

on the Minutes of the Commission. I did not mis-

interpret this. Mr. Boteler said that when the second

$100,000 check had come into the Highway Depart-

ment, he had taken it to a bank and exchanged it

for four cashier’s checks and deposited it in his own

bank. Boteler told me he then paid that money to

Jumper. This is my testimony even though I am

aware that this took place in October, 1975, three

months after Jumper was defeated in a re-election

bid. I did not know what Mr. Boteler meant when

he said, ‘Senator Randolph always gets his pound of

flesh.’

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The notes that Hamilton made during the interview

with the defendant contained five references to cash de-

livered to Jumper but do not show where the cash

came from nor the dates on which the payments were

made. The notes are not in narrative form and it would

be difficult, if not impossible, to reconstruct the conver-

sation between Hamilton and the defendant without Hamil-

ton’s testimony.

Hamilton testified that the payments to Jumper were

made out of funds deposited by Boteler but such facts

do not appear in Hamilton’s notes, so this testimony would

depend on the independent recollection of Hamilton about

the conversation. Defendant relies on Brady v. Mary-

land, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

as support for his argument that the prosecution breached

its constitutional duty to disclose exculpatory as well as

inculpatory evidence.

The United States Supreme Court in United States

v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 343 (1976)

dealt with the suppression of evidence by the prosecution

that would have been beneficial to defendant’s self-defense

theory. The court acknowledged that the prosecution does

not have a constitutional duty to routinely deliver its entire

file to defense counsel. The court fully recognized the

problems that would arise if a policy of unlimited discov-

ery was established and in footnote 20 stated:

It has been argued that the standard should focus

on the impact of the undisclosed evidence on the de-

fendant’s ability to prepare for trial, rather than the

materiality of the evidence to the issue of guilt or

innocence. See Note, The Prosecutor’s Constitutional

Duty to Reveal Evidence to the Defense, 74 Yale L.J.

136 (1964). Such a standard would be unacceptable

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for determining the materia'ity of what has been gen-

erally recognized as “Brady material” for two reasons.

First, that standard would necessarily encompass in-

criminating evidence as well as exculpatory evidence,

since knowledge of the prosecutor’s entire case would

always be useful in planning the defense, Second,

such an approach would primarily involve an analysis

of the adequacy of the notice.given to the defendant

by the State, and it has always been the Court’s view

that the notice component of due process refers to

the charge rather than the evidentiary support for

the charge. (427 U.S. at 112, 96 S.Ct. at 2401-02,

49 L.Ed.2d at 354-55).

We note that the testimony of defendant’s own witness,

Sam Waggoner, closely parrallels that of the testimony

of Hamilton as to the source of the funds from which

Boteler gave Jumper $125,000. We also note that defen-

dant was aware of this conversation with Hamilton, saw

Hamilton make notes, but apparently, for some reason

best known to himself, failed to disclose this information

to his attorneys.

We hold that the constitutional requirement of a fair

trial was not violated by a failure to deliver the notes

to the defendant before trial for the following reasons: (1)

The notes standing alone, without explanation, do not re-

veal either inculpatory or exculpatory evidence. (2) The

pretrial discovery order did not require the prosecution

to deliver the notes. (3) The defendant was as aware

of the existence of the notes as was the prosecution because

the defendant saw the notes being made by Hamilton

during the interview.

When this case is viewed in its entirety, we reject

defendant’s contention that he was not afforded a fair

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trial because the notes were not delivered to him before

the trial. According to the defendant, he took funds of

the State of Mississippi for the purpose of reimbursing

himself for personal expenditures which, according to him,

were made to enhance the future of Mississippi. As stated

infra this was no defense to the crime of embezzlement.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., ROBERTSON, P.

J.. AND WALKER, BROOM, LEE AND BOWLING,

JJ., CONCUR.

COFER, J., TAKES NO PART.

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APPENDIX B

E. L. BOTELER, JR. ) This cause this day came on to

) be heard on Petition for Re-

#50,485 v ) hearing filed herein and this

) Court having sufficiently exam-

STATE ) ined and considered the same

en banc and being of the opinion that the same should be

denied doth order that said Petition be and the same is

hereby denied. Nov. 1, 1978