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IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI STATE OF MISSISSIPPIVS.CAUSE NUMBER DEFENDANT DEMAND FOR NOTICE OF AGGRAVATING CIRCUMSTANCES AND FOR DISCLOSURE OF EVIDENCE SUPPORTING MITIGATING CIRCUMSTANCESCOMES NOW, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 3, Sections 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to order notice of the aggravating circumstances upon which the State seeks to rely, and to compel disclosure of any evidence in the possession or purview of the prosecution regarding potential mitigating circumstances. In support of his/her motion, states as follows:1. Under the United States Constitution, "[t]he fundamental idea in 'due process of law' is that of 'notice'. . . ." Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56, 59 (1971) (citing cases); accord Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). As a matter of due process, then, the prosecution must "inform” appellant what was intended to have been charged and what [s]he must be prepared to meet." United States v. Holcomb, 797 F.2d 1320, 1326 (5th Cir. 1986); accord Lankford v. Idaho, 500 U.S. , 111 S. Ct. , 114 L. Ed. 2d 173 (1991) (failure to give notice of the death penalty unconstitutional); United States v. Kurka, 818 F.2d 1427, 1431 (9th Cir. 1987). In a capital prosecution, such notice is particularly important, since it is now clear that "any decision . . . be, and appear to be, based on reason rather than caprice. . . ." Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980) (quoting Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977)). 2.In Mississippi, "[w]ithout doubt, the days of trial by ambush should be put behind us once and for all." Barnes v. State, 471 So.2d 1218, 1222 (Miss. 1985). With any charging document, the accused must be placed on notice of all the elements of the offense. See Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 807 (1949); accord Manson v. State, 349 So. 2d 67, 75 (Ala. Crim. App. 1977); Andrews v. State, 344 So. 2d 533, 534 (Ala. Crim. App. 1977). Just as with an indictment, the state must place the accused on notice as to the elements in aggravation which it seeks to prove. 3.Likewise, the prosecution must disclose any evidence in mitigation which may be either in the possession of members of the state team, or accessible to them. The prosecution must actively seek out information which is in the hands of other governmental agencies, especially when there is a specific request. The courts have previously made clear that the State must divulge more than simply such Brady material as the prosecutor may choose to slip into his or her file. As the Fifth Circuit held in Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979), the actions or inactions of one governmental actor must be imputed to another: The duty of disclosure is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state's failure is not on that account excused.Id. at 70 (quoting Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964)); accord Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975) (en banc) (disclosure must be made of "evidence actually or constructively in [the prosecution's] possession or accessible to it") (emphasis supplied), cert. denied, 425 U.S. 911 (1976); United States v. Rodriguez, 799 F.2d 649, 654 (11th Cir. 1986) ("purpose of the rule is not to punish the Government . . . but to protect the defendant's right to a fair trial, which may be affected whether the conduct is intentional or not"); Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1971); Smith v. Florida, 410 F.2d 1349, 1351 (5th Cir. 1969); Royal v. Dutton, 392 U.S. 544 (5th Cir. 1968); Jackson v. Wainwright , 390 F.2d 288, 296 (5th Cir. 1968); Carter v. Rafferty, 826 F.2d 1299, 1307 (3rd. Cir. 1987). For this reason, the courts have reversed where the prosecution team has not actively sought out exculpatory evidence from other state or governmental agents. See, e.g., United States v. Deutsch , 475 F.2d 55, 57 (5th Cir. 1973) (United States Post Office and Justice Department one entity for purposes of Brady); United States v. Hendricks, 661 F.2d 38, 42 n.4 (5th Cir. 1981); See also State v. Ireland, 500 P.2d 155, 162 (Kan. 1975) (FBI rap sheets available to state prosecutors and therefore "virtually always within the constructive knowledge of a state prosecutor"); United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980) (finding constructive knowledge of FBI & NCIC records which had not been obtained by prosecutor); United States v. Gaston, 608 F.2d 607, 613-14 (5th Cir. 1979) (FBI 302's); Walker v. Lockhart , 763 F.2d 942, 948 (8th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3332, 92 L. Ed. 2d 738 (1986); United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971) (Bureau of Narcotics reports). 4. The rules of discovery apply with equal force to the penalty phase as to the first phase of a capital trial, requiring "the disclosure of material evidence favorable in the sense of mitigation. . . ." Calley v. Callaway , 519 F.2d at 221; accord Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984), cert. denied, 469 U.S. 1090, 105 S. Ct. 601, 83 L. Ed. 2d 710 (1985); see also United States v. Gaston , 608 F.2d 607 (5th Cir. 1979); State v. Perkins, 423 So.2d 1103, 1107 (La. 1982) (Brady applies to material favorable to defendant at either guilt or sentencing); State v. Ates, 418 So.2d 1326, 1328 (La. 1982) (same); see, generally, Caron, The Capital Defendant's right to obtain exculpatory evidence from the Prosecution to present in Mitigation before Sentencing, 23 Am. Cr. L. Rev. 207 (1985). Therefore, the State should disclose all evidence available to the prosecution team which is favorable to the defendant on the issue of punishment, including but not limited to evidence disclosing that:(a) has no significant, admissible history of prior criminal activity;(b)the offense was committed while was under the influence of mental or emotional disturbance of any kind;(c) acted under duress or under any kind of domination of another person;(d) capacity to appreciate the crimi nality of his/her alleged conduct or to conform his/her conduct to the requirements of law was impaired in any fashion; (e) has adapted, or will adapt, to prison life;(f) will not be paroled for a long time on a life sentence, or will never be paroled;(g) any state agent intends to act or is consider ing acting in any manner to ensure that the defendant spends a long time in prison on a life sentence;(h) any state agent, abused or violated his constitutional rights when was arrested;(i)that has suffered racial discrimination at any time in his/her life;(j) that has suffered abuse at any time in his/her life, at the hands of family members or anyone else;(k)in partial or total negation of any evidence offered by the state in support of any alleged aggravating circumstance; and,(l) in support of any other possible mitigating factor which might choose to present to the jury. WHEREFORE, moves that this Court order the State to give notice of which elements the State seeks to prove in aggravation. Respectfully submitted,_______________________________________ Attorney for CERTIFICATE OF SERVICE I certify that I have this date delivered, by hand, a true and correct copy of the above and foregoing Motion to This the day of . ______________________________