Box v. State

For the Court:

I.

At dusk on the evening of July 27, 1981, Ms. Catherine B. Short was robbed at gunpoint in her home in Greenwood, Mississippi. In due course on October 16,1981, John Albert Box, defendant below and appellant here, together with two others, Robyn Sabrina Russell and Timothy Ray Davis, were charged with armed robbery in a joint indictment returned by the Leflore County Grand Jury. Miss.Code Ann. § 97-3-79 (1972). The proceedings against Box were severed from those against Russell and Davis.

On March 17, 1982, this case was called for trial in the Circuit Court of Leflore County, Mississippi. After hearing all of the evidence and receiving the instructions of the court and the arguments of counsel, the jury on the following day found John Albert Box guilty of armed robbery. As a recidivist, Box was sentenced to life imprisonment without eligibility for probation or parole.

From this conviction and sentence, Box appeals. Because of the State’s failure to comply with its obligations under Rule 4.06 of Uniform Criminal Rules of Circuit Court Practice, we reverse.

II.

A.

Shortly after indictment, defendant Box filed a written motion seeking discovery of nearly every aspect of the State’s case. He properly invoked the provisions of Rule 4.06 which, in pertinent part, provides as follows:

The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:

(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;

(2) Copy of any recorded statement of the defendants to any law enforcement officer.

Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

Although under the rule it was not necessary, a hearing on Box’s discovery motion was held November 19, 1981, some four months prior to the trial of this case. Box’s attorney specifically requested:

“A list of all of the State’s witnesses having knowledge of the case, along with their addresses.”

The State’s attorney responded:

“The State has no objection to providing that. We have a list of witnesses which we will furnish him if he has not already been furnished. That’s witnesses having personal knowledge, not hearsay knowledge.”

Defendant Box also requested production of physical and tangible evidence in order to enable his counsel to examine same. The prosecution interposed no objection and the court noted “You are entitled to that.” We do not find the word “photographs” expressly used in defendant’s discovery request. On the other hand, the only reasonable construction of the discovery allowed at the November 19 hearing was that the prosecution should produce photographic evidence. We do not understand the State to contest the point here.

At trial the State called as its witness one Michael Waters, the owner of the automobile allegedly used to make the trip from Jackson to Greenwood to perpetrate the robbery. Waters was a witness clearly within the scope of the discovery allowed at the November 19 hearing. His name was not disclosed to the defense until late on the evening before the trial began.

In addition, the State offered into evidence photographs of the Waters automobile. These photographs depicted an automobile similar to that observed on the evening in question by two of Ms. Short’s neighbors. The photographs likewise were within the scope of the discovery order but had not been disclosed until a few moments before they were produced at trial. Over the strenuous objection of the defendant, these items of evidence were received and were presented to the jury. Defendant did not, however, seek a continuance or a mistrial.

On this appeal, defendant Box makes the following assignment of error:

“The court erred in admitting into evidence testimony of a witness and photographs which had not been furnished defense counsel in compliance with an order for production.”

We find the assignment well taken and dispositive.

B.

The question presented here brings into direct conflict two important interests. First, there is the prosecution’s interest in presenting to the jury all relevant, probative evidence. On the other hand, there is the accused’s interest in knowing reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof which, of course, includes the names of persons the State expects to call as witnesses.

This State is committed to the proposition that these conflicting interests are best accommodated and that justice is more nearly achieved when, well in advance of trial, each side has reasonable access to the evidence of the other. See Rule 4.06, supra; Rules 26-37, Miss.R.Civ.P.

C.

The instant controversy surrounds the testimony of the witness, Michael Dean Waters, and the admission of photographs of Waters’ automobile. Without contradiction, the automobile used by the robbers was the Waters automobile.

On July 29, 1981, officers of the Greenwood Police Department obtained a statement from Box’s accomplice, Timothy Davis, which, in pertinent part, indicated that Russell, Davis and Box were together in Jackson on the day of the robbery and that they borrowed Waters’ automobile. In other words, nine months before the trial be,low, the State knew of Waters and knew that he was a witness who most likely could place Box with Russell and Davis leaving Jackson in Waters’ automobile en route to Greenwood on the day of the robbery. In view of the other evidence at trial, such testimony was important to the State’s case.

Waters’ identity as a prospective witness was not disclosed until the evening before the trial began. Timely and proper objection was made. Nevertheless, Waters was allowed to testify.

When Defendant objected to the State’s attempt to introduce this evidence at trial, the prosecuting attorneys were questioned by the trial judge at length. They were asked to give the reason for their failure to disclose the identity of Waters and to allow pretrial examination of the photographs. Both the district attorney and the assistant district attorney were candid with the court. Until the evening before the trial, they simply were not aware of the indication in the Davis statement that the robbers borrowed Waters’ car. Accordingly, they had no actual knowledge that Waters was in a position to testify that he saw Box with Russell and Davis on the day of the robbery leaving Jackson in a car fitting the description given by the eyewitness in Greenwood. The information was available to them in the form of the Davis statement.

Under the facts of this case we believe reversal is warranted. Although we are not hide-bound to reverse every case in which there was some failure by the State to abide by a discovery rule, this case should be reversed and remanded for a new trial. Prosecuting attorneys, as well as defense attorneys, must recognize the obligation to abide by discovery rules. A rule which is not enforced is no rule.

For the reasons stated above, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE and ROBERTSON, JJ., concur.

ROBERTSON, DAN M. LEE and PRATHER, JJ., specially concur.

. Russell had been convicted of armed robbery and sentenced to serve a term of 20 years in the Mississippi State Penitentiary. See Russell v. State, 422 So.2d 749 (Miss.1982, unpublished opinion).

. Davis has entered a guilty plea to the reduced charge of robbery and has received a five-year suspended sentence.

. Rule 4.06 was amended effective October 26, 1982. Here, of course, we are concerned with the rule in the form in which it appeared at the time of trial. Nothing in the amendment alters the parts of Rule 4.06 construed here.

. Waters was the only independent witness who placed Box with Davis and Russell before the robbery. According to Waters on the morning of the robbery Davis called and asked to borrow his car. Waters told Davis to meet him at the parking lot of Frito-Lay in Jackson, Waters’ place of employment. Davis arrived at Frito-Lay with two companions, Robyn Russell and a man Waters identified in open court as being John Albert Box. Waters delivered his car keys to Davis. The three left Waters at about 3:30 p.m. on the day of the robbery. Greenwood is less than a two-hour drive from Jackson. Waters’ car matched the description given by the Greenwood witnesses Palmertree and Parker.