PRATHER, JUSTICE, FOR THE COURT:
This is an appeal from a criminal conviction in the Circuit Court of Lee County, Neal Biggers presiding. Stanley L. Davis was convicted of manslaughter and sentenced to 18 years in the custody of the Mississippi Department of Corrections.
Davis appeals, assigning as error that the trial court erred in:
(1) Failing to sustain in its entirety the defendant's motion in limine concerning a phone call received by the wife of the victim from the wife of the defendant prior to the shooting.
(2) Allowing Officer Nicky Hall to testify concerning the failure of the defendant to give a statement after his arrest.
(3) Allowing the introduction of evidence and testimony by the state which was not provided to the defense in discovery.
(4) Permitting the testimony of Kim Barker who was present in the courtroom during previous testimony.
(5) Overruling the defendant's motion for directed verdict and peremptory instruction.
(6) Refusing the defendant's request to submit an instruction concerning the credibility of alleged accomplice Ray Alexander.
On October 27, 1981, at approximately 10:30 p. m. appellant Stanley L. Davis went to Seay's Lounge located south of Baldwyn, Mississippi on Hwy. 45. Davis was accompanied by his stepson, Ray Alexander. Present at the lounge were the owner Wayne Watson and his wife Sue Watson, and customers Jimmy McMillan, Fay Lindley, Bobby Skaggs, Tim Hester and his brother.
Davis and Alexander played some pool with the Hesters. There was a disturbance between Davis and the Hester brothers, and the Hester brothers left the lounge. Sometime later, Davis played pool with Jimmy McMillan. Without provocation, Davis broke a pool cue over McMillan's back, then began hitting and kicking McMillan. Wayne Watson, the owner of the bar, broke up the fight by spraying mace in Davis' face. After Davis threw a cue ball at Watson, Watson pulled out a pistol and pointed it at Davis. Davis and Alexander then left the lounge in Davis' red Ford pickup.
Approximately one hour later, Sue Watson received a phone call at Seay's Lounge from Genelle Davis, wife of appellant. Following the phone conversation, Ms. Watson went to the front window of the lounge and observed appellant Davis in his red Ford pickup truck driving in front of the lounge and firing a pistol.
Five shots were fired through the front window of Seay's Lounge. One bullet struck Wayne Watson in the chest, piercing his lung and striking the aorta. Watson died shortly thereafter from massive hemorrhaging.
At trial, appellant denied any involvement in the shooting. Appellant Davis testified that, after leaving the lounge following his fight with McMillan, he and his stepson, Ray Alexander, went to the home of Davis' estranged wife. Inside the home, Davis located a 410 shotgun belonging to his stepson. However, Davis could not locate any shells so he left home without the weapon. Davis further testified that he and Alexander then went to his apartment. Benny King, a friend of appellant, was at the apartment. According to Davis, sometime between 11:00 and 12:00 p. m., Ray Alexander borrowed appellant's pickup truck in order to take King home. When Alexander returned, appellant got in his pickup and proceeded to drive towards his wife's house. Along the way, appellant was pulled over by the police and placed under arrest.
On the contrary, Ray Alexander, appellant's stepson, testified that when he and Davis left the home of appellant's
wife, they proceeded to appellant's apartment where appellant got his own pistol. According to Alexander, they returned to Seay's Lounge, and appellant Davis, who was driving, fired the pistol into the lounge. Alexander admitted that in his two earlier statements to authorities he denied being present at the shooting.
No weapon was found on the appellant or in the appellant's truck. A 30-30 rifle was recovered from the apartment of Ray Alexander. Officers McMiller and Nicky Hall of the Lee County Sheriff's Department both testified that this rifle had dust in its barrell and could not have been recently fired. A crime lab ballistics test failed to positively identify the type of weapon used in the shooting.
I. Did the trial court err in failing to sustain in its entirety appellant's motion in limine concerning a phone call from appellant's wife to the wife of the victim immediately prior to the shooting?
At the outset of the trial, the defense sought by motion in limine to exclude any testimony concerning a telephone conversation between appellant's estranged wife, Genelle Davis, and Sue Watson, the wife of the victim. The basis of the motion was the statutory incompetency of a spouse as a witness set forth in Miss Code Ann. 13-1-5. The trial court ruled that the state could bring out the fact of the telephone conversation but would not be allowed to go into the substance of the conversation.
Sue Watson's testimony at trial included the following:
Q. The phone rang and someone called, right?
Q. Who was on the telephone?
Q. Is that Stanley Davis' wife?
Q. Okay, did you know her personally?
Q. And have you talked with her on the phone before?
Q. Okay, while you were on the phone with her, what happened?
A. If I can't tell you what she had warned me of,
BY MR. JOHN FARESE: Your Honor, we are going to object and move for a mistrial.
BY JUDGE BIGGERS: Counselor, this witness evidently doesn't understand what she is allowed to testify to and what she cannot, do you need some time to instruct her some, we are getting into a very dangerous area.
BY MR. YOUNG: All right, let me talk to her for just a minute. I don't think she understands.
A. Yes, I think I do, continue on if ...