ZUCCARO, Justice, for the Court:
On February 5, 1986, Thurmon Darby was found guilty of aggravated assault of Eugene Richardson. On November 7, 1986 Darby was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Darby appeals assigning the following as error on appeal:
I. THE COURT ERRED IN REFUSING TO ALLOW THURMON DARBY TO PRESENT HIS DEFENSE OF SELF-DEFENSE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
II. IT WAS HARMFUL ERROR FOR THE TRIAL COURT TO ADMIT INTO EVIDENCE PHOTOGRAPHS OF THE CAR OF EUGENE RICHARDSON SHOWING WHERE A SHOT HAD BEEN FIRED AT THE CAR OVER THE OBJECTION OF TRIAL COUNSEL WHERE PREDICATE WAS NOT PROPERLY LAID.
III. IT WAS HARMFUL ERROR FOR THE STATE TO FAIL TO PROVIDE DARBY WITH AN AFFIDAVIT SIGNED BY DARBY CHARGING EUGENE RICHARDSON WITH ASSAULT.
IV. THE COURT ERRED IN REFUSING TO ALLOW JOE NATHAN McFARLAND TO TESTIFY FOR THURMON DARBY IN VIOLATION OF DARBY'S SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 14 AND 26 OF THE CONSTITUTION OF THE STATE OF MISSISSIPPI.
V. THE EXCLUSION OF THE TESTIMONY OF JOE NATHAN McFARLAND BECAUSE HIS NAME DID NOT APPEAR ON THE WITNESS LIST PROVIDED BY DEFENSE COUNSEL TO THE STATE PURSUANT TO RULE 4.06 OF THE MISSISSIPPI UNIFORM CRIMINAL RULES OF CIRCUIT COURT PRACTICE CONSTITUTED AN ABUSE OF DISCRETION BY THE TRIAL COURT.
Since assignments IV and V are so similar the discussion of the two will be consolidated for purposes of this opinion.
STATEMENT OF THE FACTS
Thurmon Darby, appellant herein, was indicted by a grand jury of aggravated assault. At trial, Darby raised the defense of self-defense. Darby called several witnesses who testified that Eugene Richardson had threatened or otherwise intimidated Darby and members of his family on several occasions.
Roy Tatum was called as a witness for the defense. Tatum testified that he and friends had been "hanging out in the flats" at Poindexter and Canal one night with Darby. Darby allegedly walked off by himself. About thirty minutes after Darby left, the group at "the flats" heard a gunshot. Tatum saw Darby running towards the "flats." Tatum testified that Darby was scared.
Darby testified that the reason he was running the day Tatum saw him was because Eugene Richardson had shot a pistol between his legs while Darby was visiting with a lady named Yvonne Tynes. Yvonne Tynes was Eugene Richardson's co-worker. Darby was involved in a romantic relationship with Yvonne as was Richardson.
Through his relationship with Yvonne Tynes, Darby ascertained that Yvonne and Richardson were involved in a food stamp scam whereby they would trade food stamps for gasoline and marijuana. Somehow Yvonne Tynes became aware of Darby's status as a police informer. According to Darby, Tynes told Richardson that Darby was an informer and knew of their practice of trading food stamps. Darby argues that Richardson was after Darby because he was afraid Darby would inform the authorities about the food stamp scam.
There was testimony to the effect that Richardson was looking for Darby two weeks before Darby shot him. Roy Tatum testified that he had spoken with Richardson who seemed agitated at the time. Richardson told Tatum he had something to give Darby but refused to give it to Tatum for him to give it to Darby. Tatum testified that he had seen Richardson on the day of the shooting, October 20, 1984, with what appeared to be a gun covered with a towel on the car seat. Tatum told Darby that Richardson was looking for him and that he seemed mad so Darby had better avoid Richardson because Tatum thought Richardson had a gun.
The record reveals that Richardson drove by the Dairy Bar on October 20, 1984 while Darby was hanging around there with his friends. Richardson was on his way back to work after having been to McDonald's to get lunch. According to Tatum, Richardson slowed down and "beckoned" for Darby to come over to his car. The friends of Darby tried to persuade Darby not to walk over to Richardson's car; but, Darby proceeded in that direction. Richardson stopped the car. Tatum heard someone in the crowd say, "He got a gun!", referring to Richardson. Then Darby began firing his own gun. Darby fired his .357 magnum pistol four times. The first round lodged in the door of the car that Richardson was driving. The second round hit Richardson in his chin. Richardson attempted to get out of his car after the second shot hit him. Darby fired another round which hit Richardson in the left knee and caused him to fall face first onto the pavement. Darby then fired the last round which hit Richardson in the back of the right thigh. Darby fled. A police officer arrived on the scene and Richardson was taken to Hinds General Hospital where he had two surgeries and was released after four weeks. After the shots ceased Darby ran away leaving Richardson lying on the pavement. Tatum then observed a man running up to Richardson's car. The man reached in Richardson's car and grabbed something which Tatum could not see and ran away. Tatum testified that the towel he had seen covering something on Richardson's car seat was found laying on the pavement about ten feet from the car.
Clint Myles also testified for the defense. Myles testified that someone had run over to Richardson's car and removed something from the car after the shooting. Darby testified that he definitely saw a gun in Richardson's possession on the day of the shooting.
Andrewline Darby, Thurmon Darby's wife, testified that Richardson called her at home and threatened her and Darby's mother. Richardson told Andrewline he would burn Andrewline's home and her mother-in-law's home down.
Thurmon Darby's theory of self-defense is based upon the argument that the foregoing facts gave rise to a reasonable apprehension of fear, on his behalf, that Richardson was intent on harming Darby and members of Darby's family.
Darby was found guilty by a jury of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections. Darby appeals the verdict and sentence.
I. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW DARBY TO PRESENT HIS DEFENSE OF SELF-DEFENSE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION?
Darby asserts that the following errors committed by the trial court prevented him from effectively establishing his defense of self-defense. The appellant argues that the trial court refused to allow Roy Tatum to testify as to what he heard Darby say after Darby allegedly ran away when Richardson shot between his legs on another date.
The testimony to which Darby is referring is the testimony of Roy Tatum which appears in the record as follows:
A. We — like I said, I be around the flats and I was hanging around the flats and one night, you know, we were all hanging around and Darby, you know, he was down there with me. Well, we wasn't together, but we were, you know, around, kind of kicking it around. So he came down and parked his car and left walking, you know. I guess about twenty or thirty minutes later a lot of guys outside of the place, we heard a shot and next thing we know we saw Darby running the opposite way, you know, and by the time I caught up with him he had told me then that —
BY MS. BENNETT: We object to hearsay.
BY MR. MOORE, Continuing:
Q. You can't tell what he said. You can tell, and I wish you would, tell the Jury what was his condition.
A. When I saw him he was scared. He had told me that the guy —
BY MS. BENNETT: I object to what he told him.
BY THE COURT: Sustained.
A. Well, you could see it, you could see —
BY MR. MOORE, Continuing:
Q. That's what I want you to tell about, what you could see, rather than what you heard Darby say.
A. You could see he was scared and he had been running and he was sweating a lot.
The appellant is apparently arguing that he was precluded from presenting evidence that Richardson had shot at him on a previous occasion, that Tatum knew of this matter and that that event had given rise to a reasonable apprehension of harm on Darby's behalf of which Tatum had personal knowledge. In Jackson v. State, 426 So.2d 405, 408 (Miss. 1983) we recognized that much flexibility should be given to defendants in presenting prior harassments, threats and assaults directed toward them. Such evidence is material to the motives of both defendant and the victim. Id. See also Gates v. State, 484 So.2d 1002 (Miss. 1986).
The appellant also argues that by initially excluding evidence that Richardson and Yvonne Tynes were trading food stamps for drugs the trial court prejudicially affected the credibility of Darby's testimony when Darby was later allowed to testify to those same matters. The testimony was eventually elicited from Darby in the presence of the jury and there was no evidence that Darby's credibility was discounted.
The appellant also argues that the trial judge informed the defense counsel that if he brought up Darby's status as a police informer that the court would allow the State to go into all of Darby's prior crimes.
Rule 404(b) of the Mississippi Rules of Evidence applies because the record reflects that the attorney for the State asked a question about "a long record of prior crimes" to which "nothing has happened on most of them." Rules 608 and 609 of the Mississippi Rules of Evidence apply only to other criminal convictions to be used for impeachment purposes. Vick v. Cochran, 316 So.2d 242 (Miss. 1975).
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
According to United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), where other crimes or acts of the defendant are offered into evidence pursuant to Rule 404(b), a two-step test must be applied. It must first be determined that the evidence possesses probative value that is not substantially outweighed by its potential for undue prejudice, and must meet the other requirements of Rule 403. The other requirements being that before an exception to the general rule excluding evidence of other crimes from admission in criminal cases can be invoked, the trial court must be satisfied that 1) there is plain, clear and convincing evidence of a similar offense, 2) the offense is not too remote in time, 3) the element of the similar crime for which there is a recognized exception is a material issue in the case, and 4) there is a substantial need for the probative value of the evidence. The danger of prejudicial effect inherent in the use of similar acts evidence is such that all prerequisites must be met before the evidence may be admitted. United States v. Silva, 580 F.2d 144 (5th Cir. 1978).
In the case sub judice the trial judge stated no reasons for his ruling that all prior crimes committed by Darby (but not necessarily for which he was convicted) would be subject to exploration on cross-examination. The reason Darby wanted to testify to his status as a police informer was to show that Darby knew about Richardson's involvement in illegal activity and that Richardson had reason to fear that Darby would expose the illegal activities. This testimony was obviously relevant to Darby's defense of self-defense since Darby conceivably could have had a reasonable apprehension of bodily harm by Richardson because Richardson knew Darby was an informer.
The general rule in Mississippi is that in criminal trials, with certain exceptions, proof of other criminal conduct by the accused is inadmissible. Tobias v. State, 472 So.2d 398, 400 (Miss. 1985); Donald v. State, 472 So.2d 370, 372 (Miss. 1985); Mason v. State, 429 So.2d 569, 572 (Miss. 1983).
Our cases recognize certain limited exceptions to the rule. According to Tucker v. State, 403 So.2d 1274, 1276 (Miss. 1981):
Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See,
Smith v. State, 223 So.2d 657 (Miss. 1969), cert. denied,
397 U.S. 1030,
90 S.Ct. 1274,
25 L.Ed.2d 542 (1970);
Cummings v. State, 219 So.2d 673 (Miss. 1969), cert. den.
397 U.S. 942,
90 S.Ct. 954,
25 L.Ed.2d 122 (1970). ([
Gray v. State], 351 So.2d [1342] at 1345 [Miss. (1977)]).
The cases hold that admission of proof of other crimes which do not fall into these exceptions must be reversed. Tobias v. State, 472 So.2d 398, 400 (Miss. 1985).
The main question raised in this case is whether or not the court's ruling prevented the appellant, Darby, from presenting his defense.
We find that the trial court erred in ruling that the State could explore prior crimes of the defendant for which he had not been convicted. This rule is settled in Mississippi by Rule 404(b) of the Mississippi Rules of Evidence and numerous decisions of this Court discussed above.
Rule 103 of Mississippi Rules of Evidence states that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and a timely objection is made or the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked.
We find that the right of a defendant to put on evidence that he acted in self-defense is a substantial right as mandated by Rule 103. The right to due process mandates that the defendant be allowed to show what facts he relied on to give him a reasonable apprehension of immediate harm. Here the defendant was an informer. The victim was engaged in unlawful activity. The victim knew Darby was an informer and the victim knew Darby knew of his involvement in food stamp fraud. Richardson, the victim, had even previously threatened Darby.
By informing defense counsel that the court would allow "other crimes" evidence to be put in evidence the court made an erroneous evidentiary ruling which seriously affected the appellant's rights to due process by preventing him from putting on his defense.
The appellant also argues that the trial court erred when it sustained an objection by the State when defense counsel asked Richardson if he used a gun in committing an auto burglary. Rule 608(b) Mississippi Rules of Evidence provides that specific instances of conduct of a witness are admissible on cross-examination of a witness if probative of truthfulness or untruthfulness but only where the character trait of truthfulness or untruthfulness is being explored. This was not the case here. The defense counsel was simply attempting to impeach the witness' testimony. Therefore, since the witness' character trait for truthfulness was not in issue the court did not err in sustaining the State's objection. However, we find that the trial court did prevent Darby from putting on his defense of self-defense in ruling that the State could explore prior crimes committed by Darby for which he was not convicted. The right to raise defenses and to put on evidence in support of these defenses is a substantial right — that of due process. Therefore, we reverse and remand on this assignment of error.
II. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE PHOTOGRAPHS DEPICTING THE VICTIM'S CAR?
The trial court allowed the photographs showing the automobile Richardson was driving into evidence. The photographs displayed the bullet hole in the automobile. The appellant argues that the court erred because the photographs were prejudicial. Admission of photographs is a matter of discretion of the trial court and this Court will not reverse unless it is shown that this discretion was abused. Watson v. State, 483 So.2d 1326 (Miss. 1986). There was no abuse of discretion. The appellant admitted he fired shots into Richardson's car. For a photograph to be admissible all that must be shown is that it accurately depicts the object or scene purported to be portrayed. Jackson v. State, 483 So.2d 1353, 1355 (Miss. 1986). Richardson testified that the car was his and Darby testified that he shot at the car. This assignment of error is without merit.
III. DID THE STATE VIOLATE RULE 4.06 OF THE CRIMINAL RULES OF CIRCUIT COURT PRACTICE?
On the first day of trial, after the jury was impanelled, counsel for the defense requested production of an affidavit filed by Thurmon Darby against Eugene Richardson on or about May 30, 1983. The affidavit was allegedly based upon the aggravated assault of Darby by Richardson. The court ordered the State to produce the affidavit.
On the second day of trial, the defense introduced a bench warrant dated October 18, only two days before Darby shot Richardson. Darby argued that he signed the affidavit only three days after the assault upon him and that he couldn't remember the date; but, denied that it was signed on a date in such close proximity to the shooting. There was no affidavit introduced that was dated on or about May 30, 1983.
Darby argues that the affidavit was exculpatory and that he should have had it prior to trial. Darby argues that he was prejudiced by not getting it because he could not remember the name of the officer he talked to the day he swore out the affidavit; but, if he had been provided with the affidavit he could have gotten the officer's name from it and then called the officer as a witness.
The State argued that they searched for the affidavit but could not find it in the police records or anywhere else.
The defense counsel was just as capable as the district attorney's office of searching police records for the affidavit. However, the fact remains that the affidavit which the appellant complains was not produced in discovery and is nowhere in the record. Facts asserted to exist must and ought be definitely proved and placed before us by a record, certified by law otherwise, we cannot know them. Mason v. State, 440 So.2d 318, 319 (Miss. 1983).
We cannot say that the State violated discovery by its failure to produce an affidavit that appears no where in the record. The appellant did receive the warrant issued for Richardson's arrest so we can assume an affidavit was sworn out by Darby. However, the State argued at trial that it could not locate the affidavit. Defense counsel stated that he did not dispute the fact that the State could not find the affidavit. The affidavit appears nowhere in the record. We cannot consider this assignment of error.
IV. DID THE TRIAL COURT ERR IN EXCLUDING THE TESTIMONY OF DEFENSE WITNESS JOE NATHAN McFARLAND?
The appellant, Thurmon Darby, argues that the trial court erred in refusing to allow Joe Nathan McFarland to testify for Darby in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Sections Fourteen and Twenty-Six of the Mississippi Constitution. Darby argues that the trial court's refusal to allow McFarland to testify constituted an abuse of discretion by the trial court and was harmful error.
Prior to trial, counsel for the State contacted defense counsel to see if he had been provided with all the discovery he needed in order to represent Darby. Defense counsel admitted he had been provided some discovery by another attorney who had previously represented Darby. However, defense counsel refused to accept a list of witnesses to be called by the State. This refusal was verified in the record several times by the attorney for the State, and by defense counsel's own testimony. Counsel for the defense believed that if he refused to accept the State's list of witnesses to be called that he did not have to produce a list of the witnesses he intended to call. At trial, the State objected to all of the defense witnesses being allowed to testify. The State argued that the list had been intentionally withheld in violation of Rule 4.06 Criminal Rules of Circuit Court Practice. The trial court overruled the objection.
All of the witnesses of the defense, except Joe Nathan McFarland, were allowed to testify. The court excluded McFarland's testimony because his name was not on the list given to the State by Darby's counsel even after the trial court held a hearing on the State's motion to exclude defense witnesses for Rule 4.06 violations. The trial court heard McFarland's testimony in the absence of the jury; but, refused to allow him to testify in front of the jury.
It is clear that defense counsel deliberately violated Rule 4.06. The relevant parts of Rule 4.06 reads as follows:
If the defendant requests discovery under this rule, the defendant shall, subject to constitutional limitations, disclose to the prosecutor and permit him to inspect, copy, test and photograph, the following information and material which corresponds to that which the defendant sought and which is in the possession or control of the defendant or his counsel:
(1) Names and addresses of all witnesses in chief proposed to be offered by the defendant at trial;
(2) Exhibit any physical evidence and photos to be offered in evidence; and
(3) Any reports or statements of experts, made in connection with the particular case.
Defense counsel shall make the foregoing disclosures simultaneously with the corresponding disclosure from the prosecutor.
Except as is otherwise provided or in cases where the witness would be forced to reveal self-incriminating evidence, neither
the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information, except the accused, to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel's investigation of the case.
Defense counsel argues that there is no rule or case mandating at exactly what time the attorneys should provide discovery. However, Rule 4.06 specifically states, "Defense counsel shall make the foregoing disclosures simultaneously with the corresponding disclosure from the prosecutor." Defense counsel admitted that the counsel for the prosecution had given the list of witnesses the State intended to call to Darby's original attorney who in turn gave the list to defense counsel. Defense counsel also admitted that the attorney for the State contacted him and attempted to provide discovery to him again but he refused so that he would not be required to reciprocate.
It is readily ascertainable that Rule 4.06 applies to defense attorneys as well as prosecutors and mandates that defense attorneys provide discovery. All one has to do is read Rule 4.06 where it states in pertinent part:
If at any time during the course of the proceedings it is brought to the attention of the court that
a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.
Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. (Emphasis added)
The rule refers to "a party" rather than the State. Any other interpretation would be in error.
The court did remove the jury from the courtroom to allow McFarland to testify. Therefore, the State was allowed to become familiar with the undisclosed evidence as is required when the court is faced with a discovery violation. Cole v. State, 525 So.2d 365 (Miss. 1987). There are normally two other steps to be taken in situations involving discovery violations. If the party complaining of the discovery violation, after viewing or otherwise becoming familiar with the undisclosed evidence, believes he may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes a waiver of the issue. The State failed to request a continuance in the case sub judice. The State simply objected to its admission. In the event that the State had requested a continuance the defendant would have had to decide whether or not to proceed to trial and forego using the undisclosed evidence. If the defendant would not be willing to proceed without the evidence, the trial court should grant the requested continuance. Cole v. State, 525 So.2d 365 (Miss. 1987).
The requirements originally set forth in Box v. State, 437 So.2d 19 (Miss. 1983) (Robertson, J., specially concurring) and upheld in Cole v. State, supra were not followed in the case sub judice. We recognize that even-handed application of Rule 4.06 requires the same procedure to be followed when the State objects to testimony because of a defendant's violation as when the defendant objects for the same reason. Darghtry v. State, 530 So.2d 27 (Miss. 1988).
However, as recognized by Presiding Justice Hawkins in Darghtry v. State, supra, federal constitutional law, set forth in Taylor v. Illinois, 484 U.S. 400, ___, 108 S.Ct. 646, 655, 98 L.Ed.2d 798, 814 (1988) upholds the exclusion sanction in cases where the defendant's discovery violation was "willful and motivated by a desire to obtain a tactical advantage." The record reveals that defense counsel violated discovery even after the court held a hearing on the State's motion to exclude defense witnesses for Rule 4.06 violations. The evidence in the record is uncontroverted that the violations were willful. We find, in light of the fact that the violation was willful, that the trial court committed no error in excluding the testimony of the witness. However, we limit this holding to the cases in which the violations are intentional and this opinion is in no way intended to compromise our law regarding the procedure set forth in Box v. State, 437 So.2d 19 (Miss. 1983), and Cole v. State, 525 So.2d 365 (Miss. 1987).
We reverse and remand for a new trial based on Assignment of Error I.
REVERSED AND REMANDED.
HAWKINS, DAN M. LEE, P.JJ., and ROBERTSON and SULLIVAN, JJ., concur as to parts I, II, and III.
ROBERTSON, J., concurs as to part IV.
HAWKINS, DAN M. LEE, P.JJ., and SULLIVAN, J., concur in part and dissent in part as to part IV with written opinion.
ROY NOBLE LEE, C.J., and PRATHER and ANDERSON, JJ., dissent with separate written opinion.