BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND ANDERSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
Factually this appeal presents the disquieting story of an ongoing sexual relationship between a 36 year old man and his young teenage stepdaughter. Those interested in the development of the criminal procedural jurisprudence of this state, however, will find the case far more remarkable for the reverse discovery violation found: the defendant, not the prosecution, for whatever reason withheld discoverable material evidence and then sought to use same at trial. Recognizing that the day of trial by ambush was over and that, subject to constitutional limitations not applicable here, discovery in criminal cases is a two-way street, the Circuit Court sustained the prosecution's objections to the undiscovered evidence. For the reasons articulated below, we consider that the Circuit Court was wholly within its authority in this ruling and, as a consequence, we affirm the judgment below.
Earl Junior Coates, Defendant below and Appellant here, has been indicted, tried and convicted of the offense of sexual battery. Miss. Code Ann. 97-3-95 (Supp. 1985). According to the indictment, Coates committed sexual battery
upon his then 15 year old stepdaughter, C.H., "on or about or before the 31st day of August, 1983," without her consent.
On this appeal no question is raised regarding the sufficiency of the evidence to undergird a conviction. For this reason, no useful purpose would be served here by reciting the sordid details of the sexual encounters between Coates and his stepdaughter. Suffice it to say that C.H. testified - and Coates in open court admitted - to a continuing series of substantially similar sexual encounters including the specifically charged act of cunnilingus. See Miss. Code Ann. 97-3-97(a) (Supp. 1985).
There is only one significant variance in the evidence. C.H. testified that the acts in which she participated with Coates were all done without her consent and by virtue of Coates' repeated threats of death or serious bodily harm. Coates, on the other hand, denied any such threats and insisted that everything he did was with C.H.'s consent. While it is certainly true that under our law consent is a defense to a charge of sexual battery committed with a person fourteen years of age and over, Miss. Code Ann. 97-3-95(a) and (c) (Supp. 1985), the jury had before it substantial credible evidence upon which it could have based a finding that C.H. was threatened and did not voluntarily consent. See Gill v. State, 485 So.2d 1047, 1049 (Miss. 1986); Hines v. State, 472 So.2d 386, 392 Miss. 1985); Bennett v. State, 468 So.2d 855, 856 (Miss. 1985).
Indeed, the jury did on May 18, 1984, return a verdict finding Coates guilty as charged in the indictment. Several days later, the court held a sentencing hearing, Rule 5.13, Miss.Unif.Crim.R.Cir.Ct.Prac., and on May 22, 1984, sentenced Coates to serve a term of ten years in the custody of the Mississippi Department of Corrections. Coates' motion for a new trial was overruled and this appeal has followed.
Coates' principal assignment of error challenges the Circuit Court's exclusion from evidence of certain letters his stepdaughter, the prosecutrix, had written to him during September and October of 1983. The record reflects that the prosectuion's objections to these letters was predicated upon the failure of the defense to disclose them in pre-trial discovery. Likewise, this was the basis upon which the Circuit Court sustained the objection.
The letters appear to be nine in number and aggregate 31 handwritten pages.
The discovery violations aside, the letters were competent evidence. At their core the letters reflect (on their face) a rather caring (and normal) stepfather and stepdaughter relationship, arguably substantially at odds with the prosecution's theory that Coates employed threats of violence or death and thus forced his stepdaughter to engage in sexual acts with him. On other points, the letters contain various matters which would seem to impeach the testimony of the prosecutrix as well as to contradict other more peripheral parts of the case for the prosecution. On this appeal, as at trial, Coates argues that the letters were highly relevant to his defense of consent. While this might have been argued from them, the letters are simply silent regarding the aspect of the relationship between Coates and his stepdaughter which is the subject of this prosecution.
On May 10, 1984, a week before trial, Coates' counsel filed with the court a motion for discovery. Rule 4.06, ...