A day after ordering a mistrial and then vacating that order, a judge refused Thursday to declare a mistrial in a Baton Rouge man’s second-degree murder case but recessed the trial until noon Friday so the defense could ask an appeals court to review his ruling.

Dominique Lamar Rivers, 25, is accused of fatally shooting Derrick Lucas Sr., 37, on Sept. 2, 2010, inside Lucas’ apartment at the Myrtle Place Apartments on Boulevard de Province. Rivers also lived at the complex.

Margaret Lagattuta, one of Rivers’ attorneys, complained Wednesday and again Thursday that a prosecution witness’ taped police statement was not turned over to the defense before trial, and that key portions of Gregory Henry’s taped statement differ from the trial testimony he gave Wednesday.

A police report of Henry’s statement was provided to the defense prior to trial, but the report only summarizes Henry’s statement.

Prosecutor Steve Danielson argued Thursday that the East Baton Rouge Parish District Attorney’s Office made all of its evidence available to Rivers’ attorneys last year.

State District Judge Chip Moore, after initially granting the defense’s mistrial request Wednesday afternoon and then withdrawing his decision so he could consider the matter further, stated in a ruling late Thursday morning that because Danielson has not completed his questioning of Henry, the defense has an opportunity to address any inconsistencies in his taped statement and earlier trial testimony when he is cross-examined by Rivers’ attorneys.

The judge also noted that the defense now has Henry’s taped statement. Henry lived at the Myrtle Place Apartments at the time of the shooting.

Moore sent the jury home around noon Thursday and asked them to return by noon Friday after Lagattuta indicated she will ask the state 1st Circuit Court of Appeal to review the judge’s decision. The jury spent only a few minutes in the courtroom Thursday and heard no testimony.

First Assistant District Attorney Prem Burns said she is confident Moore’s ruling ultimately will be affirmed.

“They (Rivers’ attorneys) have ample opportunity to go into these issues on cross-examination,” she said outside the courtroom.

Outside the courthouse, Lagattuta said she took umbrage at Burns’ remarks.

“So that means they can ambush us?” Lagattuta asked rhetorically. “It’s OK to withhold crucial evidence until trial because we can cross-examine?”

Danielson told the jury Wednesday that Lucas was shot three times in the head. He said the state will prove Rivers pulled the trigger.

Scott Collier, one of Rivers’ attorneys, told jurors Wednesday that Rivers is accused of a crime he did not commit.

Prosecutors believe Rivers was burglarizing Lucas’ apartment when Lucas came home early from work and surprised Rivers.

Rivers faces a mandatory sentence of life in prison if convicted as charged.